Berkeley v. S/S for the Environment, Transport and the Regions; LB Richmond upon Thames; Berkeley Homes (West London) Ltd.

Transcript date:

Friday, June 29, 2001

Matter:

Court:

Court of Appeal

Judgement type:

Substantive

Judge(s):

Schiemann, Kay, Stuart-Smith LJJ

Case No: C/2000/3329

Neutral Citation Number: [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

Friday 29th June 2001

B e f o r e :

LORD JUSTICE SCHIEMANN

LORD JUSTICE KAY

and

SIR MURRAY STUART-SMITH

- - - - - - - - - - - - - - - - - - - - -

BERKELEY

- and -

SECRETARY OF STATE FOR THE ENVIRONMENT TRANSPORT and the REGIONS

LONDON BOROUGH OF RICHMOND UPON THAMES

BERKELEY HOMES (WEST LONDON) LTD.

- - - - - - - - - - - - - - - - - - - - -

(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

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)

J U D G M E N T

As Approved by the Court

Crown Copyright ©

LORD JUSTICE SCHIEMANN: This is the judgment of the Court

Introduction

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. 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.

12. 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.

13. 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.

14. 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).

3. 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.

15. [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.]

16. 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 be considered, having regard, in particular, to:

the existing land use;

the relative abundance, quality and regenerative capacity of natural resources

in the area;

the absorption capacity of the natural environment, paying particular attention

to the following areas;

(a) wetlands;

(b) coastal zones;

(c) mountain and forest areas;

(d) nature reserves and parks;

(e) areas classified or protected under Member States' legislation; special protection areas designated by Member States pursuant to Directive 79/409/EEC and 92/43/EEC;

(f) areas in which the environmental quality standards laid down in Community legislation have already been exceeded;

(g) densely populated areas;

(h) landscapes of historical, cultural or archaeological significance.

3. Characteristics of the potential impact

The potential significant effects of projects must be considered in relation to criteria set out under 1 and 2 above, and having regard in particular to:

the extent of the impact (geographical area and size of the affected population);

the transfrontier nature of the impact;

the magnitude and complexity of the impact;

the probability of the impact;

the duration, frequency and reversibility of the impact.

Returning to the text of the amended directive we find

17. Article 5

1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex IV inasmuch as:

(a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characteristics of a particular project or type of project and of the environmental features likely to be affected;

(b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment.

2. .....

3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:

a description of the project comprising information on the site design and size of the project;

a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects;

the data required to identify and assess the main effects which the project is likely to have on the environment;

an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking intro account the environmental effects;

a non-technical summary of the information mentioned in the previous indents.

It is convenient at this point to interpose Annex IV

18. ANNEX IV

Information Referred to in Article 5 (1)

1. Description of the project, including in particular:

a description of the physical characteristics of the whole project and the land-use requirements during the construction and operational phases;

a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;

an estimate, by type and quantity, of expected residues and emissions (water, air and soil pollution, noise, vibration, light, heat, radiation, etc.) resulting from the operation of the proposed project.

2. An outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects.

3. A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.

4. A description of the likely significant effects of the proposed project on the environment resulting from:

the existence of the project;

the use of natural resources;

the emission of pollutants, the creation of nuisances and the elimination of waste,

and the description by the developer of the forecasting methods used to assess the effects on the environment.

5. A description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment.

6. A non-technical summary of they information provided under the above headings.

7. An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in compiling the required information.

Returning to the text of the Articles there follow a number of which it is only necessary to cite

19. Article 6

(1) Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent.

(2) Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before development consent is granted.

Article 8

The results of consultations and the information gathered pursuant to Articles 5, 6 and

7 must be taken into consideration in the development consent procedure.

20. We have been referred to no case law on the amended Directive. However we have been referred to 3 cases in which the ECJ has had to consider the unamended Directive 85/337/EEC : Case C-72/95 ("the Kraaijeveld case"), Case C-392/96 ("the Irish case"), and Case C-435/97 ("the Bozen case"). The first of these was a decision of the Court, the second and third were decisions of chambers.

21. The Kraaijeveld case was a reference under Article 177 to the Court by the Dutch Raad van State. It was concerned with Item 10(e) of Annex II - canalization and flood-relief works. The relevant Dutch law transposing the Directive excluded from the need for an EIA all dykes unless they exceeded 5 km in length and had a cross section of at least 250 square metres. The following paragraphs of the judgment are of present relevance.

"[45] Kraaijveld and the Commission put forward [the following] argument. The Commission states that the specifications, criteria or thresholds established by the Member States are primarily designed to facilitate examination of projects in order to determine whether they should undergo an impact assessment, but that the existence of those specifications, criteria or thresholds does not exempt the Member States from undertaking an actual examination of the project in order to verify that it satisfies the criteria in Article 2(1) of the directive. Both consider that the Netherlands has not properly performed its obligation to implement the directive since the minimum size criteria laid down by the national legislation on dykes was (sic)fixed at a level such that no river dyke projects met the criteria and hence all dyke reinforcement projects remained outside the ambit of impact assessments. On this issue Kraaijeveld produced a decision of a Netherlands court supporting its argument.

[46] According to the Government of the Netherlands, however, the discretion allowed to the Member States is not limited in a precise manner in the directive. Moreover, the choice of thresholds for dyke length and cross-section measurements was made with due account taken of the impact of such work on the environment. The fact that, in practice, the Netherlands legislation transposing the directive left numerous projects free of the requirement of an assessment is wholly immaterial, since those projects had no harmful effects. It therefore considers that it did not go beyond the limits of its discretion in establishing those thresholds.

[48] It should be noted that Article 2(1) of the directive refers to Article 4 for the definition of projects which must undergo an assessment of their effects. Article 4(2) allows Member States a certain discretion, since it states that projects of the classes listed in Annex II are to be subject to an assessment "where Member States consider that their characteristics so require" and that, to that end, Member States may, inter alia, specify certain types of projects as being subject to an assessment or may establish the criteria or thresholds necessary to determine which projects are to be subject to an assessment.

[49] The interpretation put forward by the Commission namely that the existence of specifications, criteria and thresholds does not remove the need for an actual examination of each project in order to verify that it fulfils the criteria of Article 2(1)would deprive Article 4(2) of any point. A Member State would have no interest in fixing specifications, thresholds and criteria if, in any case, every project had to undergo an individual examination with respect to the criteria in Article 2(1).

[50] However, although the second paragraph of Article 4(2) of the directive confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue, inter alia, of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment.

[52] In a situation such as the present, it must be accepted that the Member State concerned was entitled to fix criteria relating to the size of dykes in order to establish which dyke projects had to undergo an impact assessment. The question whether, in laying down such criteria, the Member State went beyond the limits of its discretion cannot be determined in relation to the characteristics of a single project. It depends on an overall assessment of the characteristics of projects of that nature which could be envisaged in the Member State.

[53] Thus a Member State which established criteria or thresholds at a level such that, in practice, all projects relating to dykes would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.

22. The Irish Case was a case where the Commission alleged that Ireland had incorrectly transposed Article 4(2) of the Directive in relation to items 1(b) and (d) and 2(a) of Annex 2. These were respectively "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes", "Initial afforestation and deforestation for the purposes of conversion to another type of land use" and "... peat extraction (projects not included in Annex I)". Annex I contains an item 19 " ... or peat extraction where the surface of the site exceeds 150 hectares".

23. The limits which had been adopted in the Irish transposition were as follows :

In relation to item 1(b) : 100 ha

In relation to item 1(d) : 70 ha.

In relation to that part of item 2(a) which concerned peat extraction from bogs: 50 ha.

24. The following paragraphs of the judgment are of present relevance.

[20] According to the Commission, projects which do not exceed the thresholds set may nonetheless have significant environmental effects. Two factors are important in that regard.

[21] The first factor is that certain sites which are particularly sensitive or valuable may be damaged by projects which do not exceed the thresholds set. That is the case with areas identified as valuable and important for nature conservation and areas of particular archaeological or geomorphological interest.

[22] The second factor is that the legislation fails to take account of the cumulative effect of projects. A number of separate projects, which individually do not exceed the threshold set and therefore do not require an impact assessment may, taken together, have significant environmental effects.

[23] The Commission considers that the setting of absolute thresholds for the classes of projects covered by points 1(b) (use of uncultivated land or semi-natural areas for intensive agricultural purposes), 1(d) (initial afforestation/land reclamation) and 2(a) (extraction of peat) of Annex II to the Directive infringes Article 4(2) because one or both factors apply. It gives a number of examples of projects which are likely to have, or have had, significant environmental effects but which have not been the subject of any impact assessment because of the absolute nature of the thresholds.

[58] ... it must be observed that the infringement alleged by the Commission is Ireland's incorrect transposition of Article 4(2) of the Directive through the use of thresholds which have the effect that all the characteristics of a project are not taken into consideration when it comes to determining whether the project is to be subject to an impact assessment. Certain projects likely to have significant effects on the environment may thus escape the assessment requirement because they do not reach the thresholds set.

[59] So, the alleged infringement has to do with the way in which the Directive has been transposed into Irish law and not with the actual result of the application of the transposing legislation.

[60] In order to prove that the transposition of a directive is insufficient or inadequate, it is not necessary to establish the actual effects of the legislation transposing it into national law: it is the wording of the legislation itself which harbours the insufficiencies or defects of transposition.

[64] As far as the objection to thresholds is concerned, although the second sub-paragraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which are to be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion lie in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment. ...

[65] Thus, a Member State which established criteria or thresholds taking account only of the size of projects, without also taking their nature and location into consideration, would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive.

[66] Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration.

[67] Similarly, a project is likely to have significant effects where, by reason of its nature, there is a risk that it will cause a substantial or irreversible change in those environmental factors, irrespective of its size.

[68] In order to demonstrate that Ireland has failed to fulfil its obligations in this regard, the Commission has put forward several convincing examples of projects which, whilst considered solely in relation to their size, may nonetheless have significant effects on the environment by reason of their nature or location.

[69] The most significant example is afforestation because, when carried out in areas of active blanket bog, it entails, by its nature and location, the destruction of the bog ecosystem and the irreversible loss of biotopes that are original, rare and of great scientific interest. In itself, it may also cause the acidification or eutrophication of waters.

[70] It was however necessary, and possible, to take account of factors such as the nature or location of projects, for example by setting a number of thresholds corresponding to varying project sizes and applicable by reference to the nature or location of the project.

[72] It follows that, by setting, for the classes of projects covered by points 1(d) and 2(a) of Annex II to the Directive, thresholds which take account only of the size of projects, to the exclusion of their nature and location, Ireland has exceeded the limits of its discretion under Articles 2(1) and 4(2) of the Directive.

[73] As regards the cumulative effect of projects, it is to be remembered that the criteria and/or thresholds mentioned in Article 4(2) are designed to facilitate the examination of the actual characteristics exhibited by a given project in order to determine whether it is subject to the requirement to carry out an assessment, and not to exempt in advance from that obligation certain whole classes of projects listed in Annex II which may be envisaged on the territory of a Member State. ...

[74] The question whether, in laying down such criteria and/or thresholds, a Member State goes beyond the limits of its discretion cannot be determined in relation to the characteristics of a single project, but depends on an overall assessment of the characteristics of projects of that nature which could be envisaged in the Member State concerned. ...

[75] So, a Member State which established criteria and/or thresholds at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement of an impact assessment would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive unless all the projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment. ....

[76] That would be the case where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effect of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the Directive.

[77] In order to demonstrate that Ireland has failed to fulfil its obligations in this regard, the Commission has also provided various examples of the effects of the Irish legislation as drafted.

[78] Ireland has not denied that no project for the extraction of peat, covered by point 2(a) of Annex II to the Directive, has been the subject of an impact assessment, although small-scale peat extraction has been mechanised, industrialised and considerably intensified, resulting in the unremitting loss of areas of bog of nature conservation importance.

[79] As regards initial afforestation, covered by point 1(d) of Annex II to the Directive, such projects, encouraged by the grant of aid, may be implemented in proximity to one another without any impact assessment at all being carried out, if they are conducted by different developers who all keep within the threshold of 70 ha over three years.

[80] The Commission has also cited the example of land reclamation projects, covered by point 1(d) of Annex II to the Directive, whose cumulative effect is not taken into account by the Irish legislation. Nor has it been disputed that much land clearance has taken place in the Burren without a single impact assessment being carried out, although it is an area of unquestionable interest. Limestone pavement, which is characteristic of the area, has been destroyed, as have vegetation and archaeological remains, giving way to pasture. Considered together, those interventions were likely to have significant environmental effects.

[82] It follows from all of the foregoing that, by setting thresholds for the classes of projects covered by points 1(d) and 2(a) of Annex II to the Directive without also ensuring that the objective of the legislation will not be circumvented by the splitting of projects, Ireland has exceeded the limits of its discretion under Articles 2(1) and 4(2) of the Directive.

25. The Bozen Case arose out of a reference from Italy. The project in question was the restructuring of an airport, including the extension of a runway from 1040 to 1400 metres. The relevant threshold had been set by the Italian legislation as a runway exceeding 2100 meters. It appears from paragraph 26 of the judgment that the national court found that "the project at issue, by reason of its nature and size, and probably also by reason of its location in a hollow in the immediate vicinity of an industrial and a residential area, could have a significant effect on the environment."

26. The ECJ referred to the Kraaijeveld Case and held that the national discretion was not limitless. It stated in paragraph 45

"... whatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects."

27. The ECJ added in paragraph 49

"... Articles 4(2) and 2(1) of the Directive are to be interpreted as not conferring on a Member State the power either to exclude, from the outset and in their entirety, from the environmental impact assessment procedure established by the Directive certain classes of projects falling within Annex II to the Directive, including modifications to those projects, or to exempt from such a procedure a specific project, such as the project of restructuring an airport with a runway shorter than 2,100 metres, either under national legislation or on the basis of an individual examination of that project, unless those classes of projects in their entirety or the specific project could be regarded, on the basis of a comprehensive assessment, as not being likely to have significant effects on the environment. It is for the national court to review whether, on the basis of the individual examination carried out by the national authorities which resulted in the exclusion of the specific project at issue from the assessment procedure established by the Directive, those authorities correctly assessed, in accordance with the Directive, the significance of the effects of that project on the environment.

28. From these cases it can be seen that it is the settled law of the Community that

1. The purpose of thresholds and criteria is to render unnecessary an assessment of each individual project that comes forward - Kraaijeveld, para 49;

2. The criteria and thresholds set by the Member State must be such that the excluded projects could when viewed as a whole be regarded as not "likely to have significant effects on the environment" - ibid. para.53

3. The setting of the criteria or thresholds is a matter for the discretion for Member State but the discretion is circumscribed by the requirement in (2).

4. The purported exercise of that discretion can be reviewed by the ECJ on its normal principles.

29. It is important to bear in mind that the effect on the environment which is sought to be avoided must be not merely significant but also likely - words taken from Article 2(1).

The English and Welsh Regulations

30. With this in mind, we turn to the Regulations to consider whether the transposition of the Directive, as construed by the ECJ, is Community Law compliant. We are of course only concerned with the legality of the transposition so far as is relevant to the present case.

Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999

Part I - General

31. Interpretation

2. (1) In these Regulations -

"EIA application" means an application for planning permission for EIA development;

"EIA development" means development which is either -

(a) Schedule 1 development; or

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

"Schedule 2 development" means development ... of a description mentioned in Column 1 of the table in Schedule 2 where -

(a) any part of that development is to be carried out in a sensitive area; or

(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;

32. Schedule 1 development corresponds to Annex 1 of the directive and nothing directly turns on that. Column 1 of the table in Schedule 2 broadly speaking sets out the descriptions of development which are listed in Annex II of the directive. We are concerned with item 10(b) which reads

"Urban development projects, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiples cinemas."

Column 2 of the table in schedule 2 has against that item

"The area of the development exceeds 0.5 hectare".

33. Returning to the Regulations, we find

"screening direction" means a direction made by the Secretary of State as to whether development is EIA development;

"sensitive area" means any of the following -

(a) land notified under sub-section (1) of section 28 (areas of special scientific interest) of the Wildlife and Countryside Act 1981;

(b) land to which sub-section (3) of section 29 (nature conservation orders) of the Wildlife and Countryside Act 1981 applies;

(c) an area to which paragraph (u) (ii) in the table in article 10 of the Order applies;

(d) a National Park within the meaning of the National Parks and Access to the Countryside Act 1949 ;

(e) the Broads;

(f) a property appearing on the World Heritage List kept under article 11 (2) of the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage ;

(g) a scheduled monument within the meaning of the Ancient Monuments and Archaeological Areas Act 1979 ;

(h) an area of outstanding natural beauty designated as such by an order made by the Countryside Commission, as respects England, or the Countryside Council for Wales, as respects Wales, under section 87 (designation of areas of outstanding natural beauty) of the National Parks and Access to the Countryside Act 1949 as confirmed by the Secretary of State;

(i) a European site within the meaning of regulation 10 of the Convention (Natural Habitats etc.) Regulations 1994.

3. (1) This regulation applies -

(a) to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations;

(2) The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.

34. [It appears from the definition in Regulation 2 that

"environmental information" means the environmental statement, including any further information, any representation made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of any development

and that "environmental statement" means a statement which includes the information referred to in Annex IV of the directive]

PART II - Screening

35. General provisions relating to screening

4. (1) Subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

(2) The events referred to in paragraph (1) are -

(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

(7) The Secretary of State may make a screening direction irrespective of whether he has received a request to do so.

(8) The Secretary of State may direct that particular development of a description mentioned in Column 1 of the table in Schedule 2 is EIA development in spite of the fact that none of the conditions contained in sub-paragraphs (a) and (b) of the definition of "Schedule 2 development" is satisfied in relation to that development.

36. Requests for screening opinions of the local planning authority

5. (1) A person who is minded to carry out development may request the relevant planning authority to adopt a screening opinion.

(6) Where an authority -

(a) fail to adopt a screening opinion within the relevant period mentioned in paragraph (4); or

(b) adopt an opinion to the effect that the development is EIA development;

the person who requested the opinion may request the Secretary of State to make a screening direction.

37. Requests for screening directions of the Secretary of State

6. (4) The secretary of State shall make a screening direction within three weeks beginning with the date of receipt of a request pursuant to regulation 5 (6) or such longer period as he may reasonably require.

38. Appeal to the Secretary of State without an environmental statement

9. (1) Where on consideration of an appeal under section 78 (right to appeal against planning decisions and failure to take such decisions) it appears to the Secretary of State that -

(a) the relevant application is a Schedule 1 application or Schedule 2 application; and

(b) the development in question has not been the subject of a screening opinion or screening direction; and

(c) the relevant application is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations,

paragraphs (3) and (4) of regulation 6 shall apply as if the appeal were a request made by the appellant pursuant to regulation 5 (6).

(2) Where an inspector is dealing with an appeal and a question arises as to whether the relevant application is an EIA application and it appears to the inspector that it may be such an application, the inspector shall refer that question to the Secretary of State and shall not determine the appeal, except by refusing planning permission, before he receives a screening direction.

(3) .........

(4) Where it appears to the Secretary of State that the relevant application is an EIA application and is not accompanied by a statement referred to by the appellant as an environmental statement for the purposes of these Regulations, he shall notify the appellant in writing that the submission of an environmental statement is required and shall send a copy of that notification to the relevant planning authority.

(5) An appellant who receives a notification under paragraph (4) may within three weeks beginning with the date of the notification write to the Secretary of State stating that he proposes to provide an environmental statement.

(6) If the appellant does not write in accordance with paragraph (5), the Secretary of State or, where relevant, the inspector shall be under no duty to deal with the appeal; and at the end of the three week period he shall inform the appellant that no further action is being taken on the appeal.

(7) Where the Secretary of State has given a notification under paragraph (4), The Secretary of State or, where relevant, the inspector shall determine the appeal only by refusing planning permission if the appellant does not submit an environmental statement and comply with regulation 14 (5).

Submissions and conclusions

39. A number of matters are clear from a consideration of the Regulations as a whole.

1. The planning authority, the Secretary of State and the inspector are not empowered to grant planning permission for an EIA application unless the environmental impact assessment procedures have been gone through - see Regulation 3.

2. An EIA application is one for planning permission for EIA development.

3. Development will be EIA development

(a) if the development falls into Schedule 1

or

(b) (i) the development falls within column 1 of schedule 2 and

(ii) it is likely to have significant effects on the environment and

either

(α) any part of it is to be carried out in a sensitive area as defined or

(β) the threshold in column 2 is crossed;

or

(c) the Secretary of State has made a direction under regulation 4(8).

4. There are - see Regulation 4 - a number of different ways in which the decision that an application is an EIA application can be reached:-

(a) the applicant or appellant submits a statement to that effect;

(b) the planning authority adopts an opinion to that effect which is not displaced on appeal;

(c) the Secretary of State makes a screening direction to that effect.

5. The Secretary of State is never obliged to make a direction under regulation 4(8).

6. Where an Inspector is considering an appeal and a question arises as to whether an application is an EIA application he must ask himself whether the development may fulfil the conditions which I have set out in paragraph 3. If the answer to that is in the affirmative he may not grant planning permission without first referring the question to the Secretary of State.

40. Miss Sharpston points out that a very large and significant project can be accommodated on a site much smaller than 0.5 ha. (she cites the London Eye or a skyscraper by way of example) and that an accumulation of 0.5 ha. sites will amount to a very large site indeed. This is manifestly right.

41. She submits that to exempt from the requirement of an EIA urban development projects of less than 0.5 ha. may result in a situation in which developments take place which would have a significant effects on the environment by virtue, inter alia, of their nature, size or location and yet those effects have not been studied as part of an EIA. I would accept that submission.

42. She submits that the purpose of regulation 4(8) is to enable the Secretary of State to direct that such a development is EIA development notwithstanding that it does not fall within Schedule I and notwithstanding that the relevant thresholds in schedule 2 are not exceeded. Again, I would accept that submission.

43. We further accept that under the Regulations a situation can arise where someone makes to a planning authority or to an inspector empowered to grant planning permission on appeal a plausible submission to the effect that the proposed development is one in respect of which the Secretary of State might, if the matter had been before him, have made a direction under regulation 4(8). we accept that, under the Regulations as they are naturally construed the planning authority and the inspector are in such circumstances empowered to grant planning permission without an EIA first having been carried out.

44. Like the Judge we conclude that, on the assumption that the Regulations are Community Law compliant, the Inspector in the present case could not have concluded, at the time he was considering the matter, that this development might be EIA development - it did not fall into Schedule 1, it was not in a sensitive area as defined, the threshold was not crossed and the Secretary of State had not made a direction under regulation 4(8).

45. This conclusion as such is not challenged by Miss Sharpston. Miss Sharpston's written submissions could be read as suggesting that since Regulation 4 (8) envisaged the possibility of a case by case examination therefore the Secretary of State was obliged to make an examination in every case as to whether the application should be subjected to EIA procedures and therefore the Inspector was always bound to refer this question to the Secretary of State. We reject this submission as manifestly unsustainable and indeed Miss Sharpston modified it in her oral submission. In those she submitted that, bearing in mind the Community Law background, Regulations 9(2) ought to be construed so as to impose upon an inspector a duty to refer to the Secretary of State every application for planning permission in respect of which a plausible submission has been made that the Secretary of State might make a Regulation 4(8) direction.

46. Alternatively. Miss Sharpston submits that because a situation could arise in which it can be plausibly argued that a particular development would have serious environmental effects without the Regulations requiring an EIA the Regulations have not properly transposed the Directive.

47. When considering whether the transposition is Community Law compliant the following is in our judgment clear.

1. The amended directive is not intended to prevent all development which is likely to have a significant effect on the environment. It is intended to improve the quality of the decision taking process in a group of cases. If the proposed development falls within that group then the environmental impact assessment procedures are to be gone through before permission is granted.

2. In respect of development falling within Annex I the Community has decided that the nature of the development itself is such that environmental impact assessment procedures must always be gone through before permission is granted.

3. In relation to development falling within Annex II the Community has recognised that in some cases it will be desirable to insist that the EIA procedures be gone through but that this will not be desirable in all cases.

4. In relation to Annex II development the Community has, "in accordance with the subsidiarity principle" (Recital to 97/11/EC), in principle left it to Member States to identify the parameters of the group of development permission for which can not be granted without an EIA.

5. However, the Community has in Annex III set out selection criteria to be applied by Member States in identifying the parameters. If a Member State fails to apply those criteria then its resulting regulations will not be Community Law compliant.

6. The Secretaries of State in making the Regulations have purported to have taken into account those selection criteria - see the recital to the Regulations.

48. Miss Sharpston submits that the Directive does not permit the setting of thresholds purely by reference to size. We agree that Article 4(3) and Annex III and the case law to which we have referred make it clear that the Member States in deciding upon the criteria will need to take a variety of matters into consideration other than size. However that does not have as its logical consequence that the criteria themselves must refer to each or all of those matters. We reject the submission to the contrary.

49. The Directive clearly envisages, as the case law confirms, that Member States can establish criteria in advance and that cases on one side of the line do not need to be subject to an EIA assessment. It is manifest that one can always conceive of possible situations in which by an accumulation of notional sites and notional developments a devastating effect on the environment could be produced. Member States are under a duty to consider whether the criteria which they establish will "ensure that, before consent is given, projects likely to have significant effects on the environment" (Article 2 with my emphasis) will be subjected to an EIA. They must take into account possible cumulative effects and the criteria in Annex III.

50. There is no reason to suppose that the Secretaries of State have failed to do this. Nor is the end result on its face irrational or very surprising. The position is quite different from that which appertained in the Ireland case. There it was manifest from the material before the Court that the transposition was not Community Law compliant. In the present case the material produced by Lady Berkeley does not have that effect and we do not lengthen this judgment by setting it all out.

51. Certainly so far as the present application is concerned there seems to us no reason to suppose that the quality of the decision making process in relation to this block of flats would be significantly improved by the carrying out of an E.I.A. It is apparent from the judgment under appeal in paragraph 49 that this view was shared by the highly experienced Deputy Judge.

52. This court is not presently concerned with the Regulations as a whole. We are only concerned with urban development projects. In relation to them we do not consider that construing the Regulations as they naturally fall to be construed they result in a situation which reveals that there has been an incorrect transposition. Nor do we consider this an appropriate case in which to make a reference to the ECJ. That court has, in the cases which we have cited, made clear how it interprets the Directive.

52. We dismiss this appeal.

ORDER: Appeal dismissed; costs awarded to 1st Respondent; no order for costs in relation to 2nd Respondent. Permission to appeal to the House of Lords refused.

(Order does not form part of approved Judgment)