Stephen Cooper v. HM Attorney General

Transcript date:

Tuesday, September 30, 2008

Matter:

Court:

High Court

Judgement type:

Preliminary Substantive

Judge(s):

Plender J

Transcript file:

Notes:

First claim in UK for state liability for breach of EU law by domestic supreme court (here Court of Appeal in White City cases, see transcripts of 1999 and 2000 on this site). Claim dismissed but errors in judgment recognised and permission to appeal to Court of Appeal granted.

Neutral Citation Number: [2008] EWHC 2178 (Admin)

Case No: HQ05X03767
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/09/2008

Before :

THE HONOURABLE MR JUSTICE PLENDER
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Between :

STEPHEN COOPER Claimant
- and -
HM ATTORNEY GENERAL Defendant

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Mr Charles Béar QC, and Mr James McClelland (instructed by Richard Buxton Solicitors) for the Claimant
Mr Phillip Sales QC,
Mr James Maurici and
Mr Richard Honey (instructed by Treasury Solicitors) for the Defendant

Hearing dates: 03/04 July, 2008
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Approved Judgment

The Honourable Mr Justice Plender :

1 This is the first case in the United Kingdom in which a Claimant has applied for an award of damages on the ground that a court adjudicating at last instance made an error in applying Community law.

2 These proceedings are based on the cause of action recognized by the European Court of Justice ("ECJ") in Case C-224/01, Köbler v Republik Österreich, [2003] ECR I-10239. In that case the ECJ stated (at § 59):

"the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest."

3 The Claimant, Stephen Cooper, was at material times a trustee of the London branch of the Council for the Protection of Rural England (for brevity the London branch of that organization is referred to hereafter as "CPRE"). He claims to have suffered damage in consequence of two judgments of the Court of Appeal refusing the CPRE judicial review of certain decisions of the London Borough of Hammersmith and Fulham ("the Council"). The two decisions were dated 21st December 1999 and 12th June 2000. In both cases the Court of Appeal was adjudicating at last instance: see R v Secretary of State ex parte Eastaway, [2000] 1 WLR 2222.

4 For the reasons set out hereafter I have concluded that this case falls far below the standard required to constitute a manifest infringement of the applicable law so as to give rise to a claim for damages: Case C-224/01, Köbler, §§ 34-35.

The EIA Directive and the 1988 Regulations

5 Council Directive 85/337/EC on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive") provides in Article 2(1) that:

"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 an assessment with regard to their effects. These projects are defined in Article 4."

6 Article 4 defines the projects by reference to those in Annex I, which have in every case to be made subject to an environmental assessment (see Article 4(1)), and those in Annex II, which have to be subject to an environmental assessment if Member States consider that their characteristics so require. Annex II included, under paragraph 10, "urban development projects".

7 For the purpose of implementing the EIA Directive the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the 1988 Regulations") were made pursuant to the European Communities Act 1972. They have now been superseded by the Town & Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.

8 For the purposes of the 1988 Regulations "outline planning permission" was defined by virtue of section 92 of the Town and Country Planning Act 1990 ("the 1990 Act") as meaning planning permission:

"granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority or the Secretary of State of matters not particularised in the application ("reserved matters")".

Article 1(2) of the Town and Country Planning (General Development Procedure) Order 1995 defines "reserved matters" as:

"any of the following matters in respect of which details have not been given in the application, namely (a) siting, (b) design, (c) external appearance, (d) means of access, (e) the landscaping of the site".

9 Regulation 4(2) of the 1988 Regulations provided:

"The local 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 state in their decision that they have done so."

10 It is a matter of judgment for the planning decision-maker subject only to Wednesbury unreasonableness to determine whether an Annex II project is likely to have significant effects on the environment so as to require an environmental impact assessment: see e.g. R (Goodman) v London Borough of Lewisham [2003] Env LR 28.

11 Circular 15/88, issued by the Department of the Environment, provided that redevelopment of previously developed land is unlikely to require an assessment, unless the proposed development is one of certain specific types or is on a very much greater scale than the previous development.

The Grant of Planning Permission and the CPRE's Challenge

12 On 21st September 1994 the Environment Committee of the London Borough of Hammersmith & Fulham ("the Council") decided to grant outline planning permission (subject to completion of an agreement under section 106 of the 1990 Act) for the White City development. The site for the proposed development was on land bounded on three sides by motorway, another main road and commercial development. Much of the site had been derelict for about twenty years; but part was devoted to industrial use. The development application had been the subject of substantial publicity and of a public consultation.

13 On 20th March 1996 the Council formally granted outline planning permission for the White City development.

14 In October 1997 applications were made for approval of reserved matters including the main shopping centre, car parking and bus station, highway works, leisure uses and demolition and construction strategy. For the purposes of the reserved matters application the developer submitted a voluntary environmental impact assessment.

15 By notice dated 11th October 1999, amended on 1st November 1999 and 14th December 1999, the London branch of the CPRE applied for permission to seek judicial review of the Council's decision to grant outline planning permission for the development and of the Council's anticipated decision to grant reserved matters approval; and of its refusal to consider exercising its powers under the 1990 Act to revoke the purported outline consent.

16 It alleged that no decision had been validly made by the Council as to the necessity or otherwise for an environmental impact assessment, since the officer who stated that no such assessment was required had not been validly authorized to take that decision. It was accepted there was a power to delegate, but it was said there was not a properly recorded chain of delegation. CPRE disavowed any challenge to "the substantive judgmental decision that an environmental assessment was not needed. The challenge is one of procedural irregularity [only] ...".

The Judgment of Richards J

17 The application for judicial review was first considered by Richards J (as he then was) on 26th October 1999, [1999] Env L.R. 532. He distinguished between the challenge to the outline planning permission; the challenge to the anticipated reserved matters approval; and the challenge to the refusal to consider revocation.

18 On the challenge to the outline planning permission he stated:

"there is, in my view, an arguable case in relation to the failure to obtain an environmental impact statement before the grant of outline consent. Whether an assessment was needed was not considered by the relevant committee of the council. To the extent that it was considered by officers, it is at the very least arguable that they did not have the delegated authority to take such an important decision."

Although the application in respect of the outline planning permission was properly arguable, he held that permission should be refused for reasons of delay. The latest date when the grounds for CPRE's application arose was the date of planning consent in March 1996. On any view, the application had not been made within the period of three months specified in RSC O 53 r 4(1) and there were no good reasons for extending the time.

19 On the approval of reserved matters, Richards J reasoned that the real target of the challenge was the original grant of outline planning consent. Referring to R v Secretary of State for Trade and Industry ex parte Greenpeace, [1998] Env LR 415 and to R v Newbury District Council ex parte Chieveley Parish Council, [1998] 10 Admin LR 676, he reasoned that an applicant for judicial review must move against the substantive act or decision which is the real basis of his complaint: he cannot avoid the consequence of his delay by attacking a subsequent but related matter (the anticipated decision on reserved matters instead of the outline permission). For that reason, and also because the applicant should not in any event be permitted to challenge the reserved matters approval in circumstances in which it was not permitted to challenge the outline planning permission, permission to challenge the anticipated reserved matters approval should be refused.

20 Richards J stated "It is the outline consent which constitutes development consent for the purposes of the directive". In so stating he relied on the judgment of the House of Lords decision in R v North Yorkshire CC, ex p Brown [2000] 1 AC 397.

21 On the refusal to consider the exercise of its power of revocation, however, Richards J considered that permission to seek judicial review should be granted. It was arguable that the Council had the power to correct the breach of Community law at the outline stage, if breach there was, by revoking the decision granted. Although he accepted that "the applicant faces serious problems in relation to this part of the case" he took the view that "the point raised is not plainly a bad one and that the issue does merit consideration".

The Renewed Application relating to Outline Consent and Reserved Matters

22 The Court of Appeal heard on 15th December 1999 the Applicants' renewed application for permission to apply for judicial review on the issues of outline planning permission and the anticipated approval of reserved matters. The matter came before Swinton Thomas LJ, May LJ and Singer J, the last of whom gave the judgment of the Court on 21st December 1999: 81 P & CR 7.

23 The Court of Appeal reasoned that even if there were an arguable point as to the lack of authority of Mr Pallace, the Council's officer, to determine that no environmental impact assessment was required and even if a correctly constituted decision-maker would have been required, there was no explanation for the delay of 42 months between the grant of outline planning permission and the application for permission to seek judicial review. The delay had been the cause of substantial prejudice to the developer which had purchased parts of the site and had entered into contracts for works, including highway works to the value of £16 million. In the words of Singer J:

"the degree of delay, even if it stood alone, and the compounding factor that it is unexplained would lead me to refuse to extend time. But as this application has in fact been heard inter partes, evidence of the scale of potential prejudice has also been available. On any basis it can only be characterized as extremely substantial."

24 Singer J considered to be unarguable the submission that the Council was not entitled to consider the approval of reserved matters in the absence of an environmental assessment. In expressing that view he reasoned that the wording of the 1988 Regulations seemed to militate against the position adopted by the CPRE; for it would be necessary to construe the "application for planning permission" as extending to the decision at reserved matters stage, but as excluding the application for outline permission. On that basis there was no room for CPRE's claim that the Council could not proceed to approve reserved matters without considering whether an environmental survey was required. No application was made at that stage for a reference for preliminary ruling.

The Judgment of Harrison J

25 Also on 21st December 1999 the Applicants argued before Harrison J their application for judicial review of the refusal to consider revoking or modifying the grant of outline planning permission: [2000] Env LR 565. He emphasized that in these proceedings:

"There is no suggestion that it [the EIA Directive] has not been correctly implemented into the national law"

The absence of any such suggestion is not a cause for surprise in view of Lord Bingham's subsequent observation in Berkeley v Secretary of State for the Environment, 6th July 2000, that

"It is accepted that the Directive was correctly transposed into domestic law by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988."

26 The essence of the Applicant's case was:

"that there has been a breach of Community law by unlawfully granting outline planning permission without an environmental assessment as a result of the First Respondent's failure to consider the matter properly under delegated powers and that, as a result, there is a duty to nullify the unlawful consequence of that breach of Community law by revoking the outline permission, or at least considering whether to revoke it, so that the outline application can be properly determined."

27 But as the application before him had to be addressed on the premise that the EIA Directive had been correctly transposed into our domestic law by the 1998 Regulations, the essential question was whether Mr Pallace was acting within the scope of his delegated powers when deciding that no environmental impact statement was required as a precondition for the grant of outline planning consent. That did not involve consideration of any breach of European obligations arising from the Treaty or from the Directive. It involved consideration of the 1988 Regulations.

28 Harrison J concluded that there was no substance in the submission that an error in the decision to grant outline planning permission (if error there be) carried the consequence that there was a duty to consider revoking it. He referred to the judgment of Schiemann LJ in Three Rivers District Council v Bank of England, [1999] Eu LR 211 for the proposition that an individual cannot sue for breach of his rights under a Directive which has, in all respects, been accurately transposed into national law. He stated:

"Having regard to that decision, I do not accept Mr McCracken's submission that an administrative measure, such as the power of revocation, can give rise to an enforceable Community right after the Directive has been properly transposed into national law."

29 Harrison J concluded:

"Finally I should say that, if I am wrong in the conclusions I have reached, I would nevertheless have had no hesitation in exercising my discretion to refuse relief for a myriad of reasons which, in the circumstances, it is not necessary for me to spell out in detail. Suffice it to say that to grant relief at this stage would, in my judgment, be detrimental to good administration, prejudicial to many parties, and would risk bringing the planning system into disrepute. The arguments in favour of granting relief are heavily outweighed, in my view, by those against granting relief."

The Appeal on the Revocation Issue

30 The Applicants applied to the Court of Appeal for permission to appeal against the decision of Harrison J and made a further application for an adjournment of the application for permission to appeal. Both applications were refused by the Court of Appeal (comprising Ward LJ and Bell J) dated 12th June 2000. In giving judgment Ward LJ stated that it was central to the application that the question of an environmental assessment was considered by the Assistant Director of Council's Environment Department who concluded that the potential environmental effects did not warrant an environmental assessment. Ward LJ repeated in his judgment the words of the applicants' counsel who stated that:

"CPRE's challenge does not assert that a decision not to require an environmental survey could be impugned."

Harrison J had been correct in identifying as the narrow basis of the complaint the submission that the decision was made by a person without delegated authority.

31 Ward LJ considered that no assistance was to be derived from the cases establishing that where a Directive has been improperly implemented, or not implemented at all, a Member State must take all necessary measures to achieve the result that the Directive prescribes (see Case 72/95, Kraaijveld BV and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 § 55 and C-435/97, World Wild Life Fund and Others v Autonome Prinz Bozen, [1999] ECR I-5603 § 70 .) Where, on the other hand, a Directive had been properly implemented, there was no scope for application of the principle that a Member State must take all take all necessary measures, including administrative measures, to achieve the result. He quoted with approval the words of Schiemann LJ in Marks & Spencer v Commissioners of Customs & Excise, [2000] STC 16:

"Where the national legislation correctly transposes the Directive, then this problem does not arise: the individual can assert before the national court the right which the Directive directed the Member State to afford the individual."

There was no authority casting doubt on the principle that once a Directive had been properly implemented in national law, the remedies are those for which national law makes provision.

32 He concluded:

"I am wholly satisfied that Harrison J was absolutely right to characterise this as a back door attempt to achieve that which the Court of Appeal refused to permit, and which it is now conceded to be impossible to achieve, namely an assault on the original grant of outline planning permission. The chance to do so was lost years ago."

33 The applicants were ordered to pay the costs of both the Council and the developers, who had intervened as an interested party in the judicial review.

34 The Court of Appeal declined to make a reference to the ECJ; although the point on which they appear to have been invited to do so was not on the interpretation of the EIA Directive but on the question whether it is for domestic law to determine the appropriate remedies for breach of national provisions correctly implementing a directive (§ 44).

The Present Application

35 In the present proceedings the Claimant relies only upon the alleged errors connected with the Revocation and Reserved Matters challenges (Skeleton §§ 44 and 75). Following interlocutory proceedings Cox J made an order, sealed on 19th June 2008, that this hearing should determine the following preliminary issues:

(i) In what respects did the English courts err in Community law in the reasoning that led to the disposal of the judicial review proceedings brought by the Claimant and others in relation to the planning applications for the White City Development?

(ii) Were such errors of reasoning, or any of them, sufficiently serious to be of the type required for State liability laid down by the ECJ in Kohler v Austria?

36 Before addressing those issues it is convenient to set out the circumstances of Case C-224/01, Köbler v Republik Österreich, Case C-173/03 Traghetti del Mediterraneo v Repubblica Italiana, [2006] ECR -5177 and the French Conseil d'Etat in the Gestas case, 19th May 2008, not yet reported.

Köbler

37 In Köbler the ECJ was presented with a reference from the Civil Court of the Viennese Land for a preliminary ruling on the interpretation of Article 48 EC (governing freedom of movement for workers) and the judgments of the ECJ in Case C-48/92, Brasserie du Pêcheur and Factortame, [1996] ECR I-1029 and Case C-58/93, Dorsch Consult, [1997] ECR I-4961.

38 The questions were raised in the course of an action brought by Mr Köbler against the Republic of Austria for damages said to have been caused by the misapplication of Community law by the Austrian Verwaltungsgerichtshof (the supreme administrative court).

39 The misapplication of Community law arose in the following way. Mr Köbler was a professor in the University of Innsbruck. His terms of employment were governed by Austrian federal law. This provided for a basic salary increased by a length of service increment, payable after fifteen years' service at an Austrian State university. Although he had not yet completed fifteen years' such service he applied for the increment contending that account should be taken of periods he had spent in the employment of public universities in other Member States. By Order dated 22nd October 1997 the Verwaltungsgerichtshof referred questions to the ECJ for preliminary ruling. In its Order for Reference the Verwaltungsgerichtshof stated that under Austrian law the length of service increment for university professors is a component of salary and not a loyalty bonus.

40 While that reference was pending the ECJ gave its ruling in Case C-15/96, Schöning-Kougebtopoulou v Freie under Hansestadt Hamburg, [1998] ECR I-47. In that case it stated that Article 48 EC precludes a clause in a collective agreement providing for promotion on grounds of seniority after eight years' service "without taking any account of previous periods of comparable employment completed in the public service of another Member State". The Registrar of the ECJ then wrote to the Verwaltungsgerichtshof enquiring whether it wished to maintain the reference made on 22nd October 1997, in view of the ruling in Schöning-Kougebtopoulou.

41 After hearing submissions of the parties the Verwaltungsgerichtshof withdrew its reference and dismissed Mr Köbler's claim upon the ground that the special service increment constituted a loyalty bonus (contrary to the view expressed by the same court when making the reference). It held that such a loyalty bonus was objectively justified in derogation from the Community rules on free movement of workers. Mr Köbler then instituted proceedings in the Civil Court, Vienna, claiming damages for the alleged misapplication of Community law by the Verwaltungsgerichtshof.

42 Austria maintained that the decisions of a court of last instance cannot found an obligation to make reparation in damages. That submission was supported, wholly or with qualifications, by the Commission, France, Germany, the Netherlands and the United Kingdom.

43 The ECJ reasoned that the principle of liability for damage caused to individuals as a result of breaches by Member States of Community law is inherent in the system of Community law. It referred to Joined Cases 6/90 and 9/90, Francovich and Others, [1991] ECR I-5357, §18 and other sources. It then stated that this principle applies irrespective of the authority of the State whose act or omission is responsible for the breach. It referred to Case C-302/97, Konle v Austria, [1999] ECR I-3099 § 67 among other sources. It continued as follows:

"In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called into question and the protection of those rights would be weakened if individuals were precluded from being able, under certain circumstances, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance."

44 The ECJ said that in order to found liability: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a causal link between the breach of the obligation and the loss or damage sustained by the parties.

45 The ECJ considered that it was normally the function of a national court to determine whether these conditions were fulfilled. Nevertheless in the case before it the Court was in a position to conclude that the action of the Verwaltungsgerichtshof did not constitute a sufficiently serious breach. In dismissing Mr Köbler's claim, the Verwaltungsgerichtshof had indeed infringed Community law (§ 119). The interpretation that it had given to Article 48 EC was likely to constitute an obstacle to the free movement of workers; but the error was not manifest because Community law did not expressly cover the point whether a method of rewarding the loyalty of an employee to an employer could be justified. No answer to the question was to be found in the case-law and the answer was not obvious (§122). The Verwaltungsgerichtshof ought to have maintained its reference for preliminary ruling but its failure to do so did not make the error manifest.

46 In so ruling the ECJ departed from the recommendation of Mr Advocate General Léger, who proposed that it should rule that the error of the Verwaltungsgerichtshof was "inexcusable" and was capable of giving rise to liability. The Advocate General stated that the decisive factor is to enquire whether the error was inexcusable (§ 139). That was to be determined by examining the clarity or precision of the Community rule infringed and the state of the ECJ's case-law on the subject (§ 148).

47 The Claimant submits that the error on the part of the Verwaltungsgerichtshof was less egregious than that of which the Claimant now complains. The Austrian court had discharged its initial duty to make a reference and had withdrawn it only when invited to do so by the ECJ. Moreover in finding that the "loyalty bonus" argument had failed on the particular facts of Schöning-Kougebtopoulou v Freie under Hansestadt Hamburg, the ECJ had recognized that a length of service benefit might be justified if it actually did reward the loyalty of a particular employee.

Traghetti

48 In its judgment in Traghetti on 13th June 2006 the ECJ reverted to the theme of State liability for breaches of Community law committed by superior courts of Member States. In that case TDM was the operator of ferry services between the mainland of Italy and the islands of Sicily and Sardinia. It claimed to have suffered loss in consequence of the grant of unlawful State aids to a competitor, Traghetti, and brought proceedings against Traghetti for damages to compensate it for losses said to have been suffered in consequence of breaches of Community law. It asked the Corte Suprema di Cassazione to refer questions to the ECJ for preliminary ruling. The Corte Suprema declined to do so, reasoning that the legality of the aids in question was established by Case 13/83, Parliament v Council, [1986] ECR 1513.

49 TDM then claimed damages pursuant to the judgment in Köbler in the Tribunale di Genova, which was confronted with an apparent objection to the claim in the form of Italian legislation: Law No 117 of 13th April 1988 sul risarcimento dei danni cagionati nell' esercizio delle funzioni giudiziarie e responsabilitá civile dei magistrati, which limited the liability of the State for judicial error to cases of intentional fault or serious misconduct: expressions which were interpreted by Italian courts to mean "manifest, gross and large-scale infringement of the law" or a construction of the law "in terms contrary to all logical criteria".

50 The ECJ accepted that national legislation such as that at issue in the main proceedings is compatible with Community law since it creates a fair balance between the need to preserve the independence of the judiciary and the essential requirements of legal certainty, on the one hand, and the provision of effective judicial protection of individuals, on the other (§ 28) and that "State liability can be incurred only in the exceptional case where the national court adjudicating at last instance has manifestly infringed the applicable law" (§ 32) but it continued as follows (§§ 34-35):
"On the one hand, interpretation of provisions of law forms part of the very essence of judicial activity since, whatever the sphere of activity considered, a court faced with divergent or conflicting arguments must normally interpret the relevant legal rules - of national and/or Community law - in order to resolve the dispute brought before it.
On the other hand, it is not inconceivable that a manifest infringement of Community law might be committed precisely in the exercise of such work of interpretation if, for example, the court gives a substantive or procedural rule of Community law a manifestly incorrect meaning, particularly in the light of the relevant case-law of the Court on the subject ..."

51 The Court therefore ruled that Community law precludes national legislation which limits State liability for judicial errors solely to cases of intentional fault and serious misconduct on the part of the court, so as to exclude the liability of the Member State in cases where a manifest infringement of the applicable law was committed.

52 In Traghetti Mr Advocate General Léger urged the Court to rule that "a State may incur liability on the basis of national law under less restrictive conditions than those defined by the Court in Köbler" (§ 101); but the ECJ declined to follow his Opinion.

Gestas

53 The principles established in Köbler and in Traghetti were applied by the French Conseil d'Etat in its judgment of 19th May 2008, although in that judgment the Conseil d'Etat did not cite Köbler and Traghetti by name. In that case the Claimant applied for damages to compensate him for what he claimed to be the excessive length of the procedure before the Tribuna administrative de Pau and the manifest errors that he alleged had been committed by that tribunal in applying principles laid down by the Conseil d'Etat itself.

54 The Conseil first addressed principles of French law governing the liability of the State for errors committed by courts; and then acknowledged that in accordance with Community law, the liability of the State may be engaged when the content of a decision of a higher court is vitiated by a manifest breach of a rule of Community law whose object is to confer rights on individuals" ("dans le cas où le contenu de la décision juridictionelle est entachée d'une violation manifeste du droit communautaire ayant pour objet de conférer des droits aux particuliers"). In the event, the claim failed because Mr Gestas was unable to show that his case fell within the ambit of the rule of Community law that he invoked: a rule based on Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.

The Principles to be Deduced from these Cases

55 I do not find it particularly helpful to compare the gravity of error made by one court with that of another for the purpose of determining whether a court has been guilty of a manifest infringement of Community law. A more principled approach is required. In the light of the decided cases we may deduce that Member States must make good damage caused to individuals by infringements of Community law for which they are responsible even where the infringement stems from a decision of a court adjudicating at last instance, provided that three conditions are fulfilled.

(i) The rule of law infringed must be intended to confer rights on individuals. This condition does not refer to the propensity of the infringed rule to produce direct effects (for in Joined Cases 6/90 and 9/90, Francovich the Directive in question did not produce direct effects). The reference to rules which "confer rights on individuals" is perhaps to be understood by reference to the notion of Schutzgesetz in German civil law, denoting rules for the protection of individuals as opposed to those designed for the promotion of the indivisible public good. However in Berkeley v Secretary of State for the Environment, Lord Bingham recorded that it was agreed that the EIA Directive confers a Community law right exerciseable by persons such as the appellant.

(ii) The breach must be sufficiently serious. State liability cannot be confined only to cases involving intentional fault or serious misconduct. On the other hand, it is not appropriate to ask simply whether the judicial error was inexcusable. Regard must be had to the specific nature of the judicial function (which entails interpretation of provisions of law) and to the legitimate requirements of legal certainty. State liability can be incurred only in an exceptional case where the national court has manifestly infringed the applicable law (Köbler, § 53). To determine whether the error was manifest, the court hearing the claim must take account of all the factors which characterise the case before it. These factors include, in particular, the degree of clarity and of precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken (where applicable) by a Community institution and non-compliance by the court in question with its obligation to make a reference for preliminary ruling (Köbler, § 55). The breach is in any event manifest, and thus sufficiently serious, if it entails breach of the case-law of the Court of Justice in the matter (Köbler, § 56).

(iii) There must be a causal link between the breach of the obligation and the loss or damage sustained by the parties. The identification of such a link is the subject of current litigation in Case T 268/06, Olympiaki Aeroporia Ypiresies AE v Commission. 
Case C-508/03, Commission v United Kingdom

56 In the present proceedings a substantial part of the Claimant's case was devoted to the proposition that the judgments of the Court of Appeal dated 21st January 1999 and 12th June 2000 (particularly the latter) were incompatible with judgments of the ECJ delivered on 4th May 2006 in Case C-508/03, Commission v United Kingdom [2006] ECR I-3969 and Case C-290/03, Barker v London Borough of Bromley, [2006] ECR I-3949. This submission formed the premise for certain of the Claimant's subsequent submissions, including his submission on the failure to make a reference to the ECJ.

57 In Case C-508/03, Commission v United Kingdom, the ECJ had to consider an application made by the Commission against the United Kingdom. The application related to the White City development and to a separate proposed development at Crystal Palace. For the purpose of this case we may ignore the parts of the judgment relating to the Crystal Palace development.

58 The Commission's complaint as regards the White City development, made "following receipt of a complaint", was that the United Kingdom had failed to apply the EIA Directive correctly because no environmental assessment had been carried out by the Council in relation to the White City development although, it was said, the project was liable to have significant environmental effects (§§ 34, 43, 82). The scale of the project was invoked as a basis for contending that an environmental assessment was mandatory. Referring to its decision of 4th May 2006 in Case C-290/03, Barker v London Borough of Bromley,, the ECJ concluded that:

"it is clear that the Commission did not satisfy the burden of proof placed upon it. It cannot merely rely on presumptions that large-scale projects are automatically likely to have significant effects on the environment without establishing, on the basis of at least some specific evidence, that the competent authorities made a manifest error of assessment."

59 That part of the case occupied by far the greater part of the judgment (94 of the 109 operative paragraphs). The ECJ then turned to the Commission's second application by which it contended that the United Kingdom had failed to fulfil its obligations under Community law by incorrectly transposing Articles 2(1) and 4(2) of the EIA Directive into domestic law, as a result of the national rules under which an assessment may be carried out only at the initial outline planning permission stage and not at the later reserved matters stage. The Commission considered that where national law provides for a consent procedure comprising more than one stage, the EIA Directive requires that an assessment may in principle be carried out at each stage in that procedure if it appears that the project in question is likely to have significant effects on the environment" (§ 96).

60 The ECJ did not accept the Commission's submission on that issue without qualification. On the contrary, it recalled its own judgment in Case C-201/02, Delena Wells v Secretary of State for Transport, Local Government and the Regions, [2004] ECR I-723 § 43 in which it had held that projects likely to have significant effects on the environment must be made subject to an assessment with regard to their effects before (multi-stage) development consent is given (§ 103).

61 Reiterating its ruling in Wells the ECJ went on to state that:

"where national law provides for a consent procedure comprising more than one stage, the one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.
...
Accordingly, the second complaint is partly well founded."
(§ 104, emphasis added, and 108).

The Berkeley Case

62 The Claimant also relies on in the judgment of the House of Lords in Berkeley v Secretary of State for the Environment (No.1), [2001] 2 AC 603. The issue in that case was whether the Secretary of State's grant of planning permission for the development of the Fulham Football Club's site at Craven Cottage should be quashed. It was conceded that the Secretary of State did not consider whether the proposed development was an urban development which would be likely to have significant effects on the environment and that he was consequently in breach of regulation 4(2) of the 1988 Regulations. Before the Court of Appeal Pill LJ said that he was unpersuaded that an environmental impact assessment could have had any effect on the course of events or was prejudicial to the quality of the decision. But in the House of Lords counsel for the Secretary of State did not attempt to support that reasoning. He accepted that the fact that a court is satisfied that an environmental impact assessment 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. Lord Hobhouse stated that in his view counsel for the Secretary of State had been right in conceding that the grant of planning permission ultra vires could not be validated by a court as a matter of discretion.

The Decisions in Respect of Outline Planning Permission

63 In the present proceedings it is not alleged that the High Court or Court of Appeal erred in its conclusions as to the challenge to the initial grant of outline planning permission. I think it appropriate, however, to confirm that in my view the decisions of those courts on that question were entirely in accordance with Community law.

64 Permission to apply for judicial review was refused on the ground that the applications were made far too late. It is a well established principle of Community law that in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, subject only to the principles of equivalence and effectiveness (see, in particular, Case 33/76, Rewe-Zentralfinanz and Rewe-Zentral, [1976] ECR 1989, § 5; Case 45/76, Comet, [1976] ECR 2043, §13; Case C 312/93, Peterbroeck, [1995] ECR I 4599, § 12; Joined Cases C 222/05 to C 225/05, van der Weerd and Others, [2007] ECR I 4233, § 28 and Case C-268/06, Impact v Minister for Agriculture and Food and Others, 15th April 2008, not yet reported § 44.)

65 Since the EIA Directive does not lay down time-limits for the bringing of actions by persons concerned, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing the applicable time-limits, subject of course to compliance with the principles of equivalence and effectiveness. The setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular, Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, § 5, Case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, §§ 17 and 18, and Case C 188/95 Fantask and Others [1997] ECR I 6783, §48).

66 In applying RSC O 53 r 4(1) to the Claimant's case, the Court of Appeal applied a rule of national law entirely compatible with Community law. I would regard as unarguable the proposition that any right derived by the Claimant from the EIA Directive would be made ineffective by the application of a rule which (in casu) denied an opportunity to apply for judicial review after a the delay of 42 months.

The Decisions in Respect of Reserved Matters

67 In the judgment of Richards J dated 26th October 1999 and in that of the Court of Appeal dated 21st December 1999, I detect errors of law in the sense that these courts made statements inconsistent with the law as it was later interpreted by the ECJ in Commission v United Kingdom. In view of that judgment we may deduce that Richards J was not correct when stating ([1999] Env. L.R. 532 at 541) that "the effect of the Directive is to require the question of environmental assessment to be considered at the stage of the initial planning decision, in this case the outline consent ... It is the outline consent which constitutes development consent for the purposes of the directive". In view of Commission v United Kingdom we may also deduce that Singer J erred in characterising as unarguable CPRE's "claim that the local authority should and could not proceed to approve reserved matters without considering whether under the 1988 Regulations an environmental survey was required" (81 P & CR 7 at 81).

68 I am however completely satisfied that the judgments of Richards J and of the Court of Appeal on 21st December 1999 did not disclose any manifest error such as to give rise to liability pursuant to Köbler.

69 Neither of these judgments was inconsistent with Community law as it had been interpreted by the ECJ on the dates on which those judgments were given. They were also consistent with the judgment of the ECJ in Delena Wells v Secretary of State for Transport, Local Government and the Regions, § 53.

70 Furthermore, both judgments were based on a plausible interpretation of the EIA Directive which provides in Article 2(1) that Member States should assess projects liable to have a significant effect on the environment having "before consent is given".

71 Furthermore the interpretation accepted by the Court of Appeal was also accepted in Commission v United Kingdom by the Commission which submitted to the ECJ that where national law provides for a consent procedure comprising more than one stage, the EIA Directive requires that an assessment may in principle be carried out at each stage in that procedure if it appears that the project in question is likely to have significant effects on the environment.

72 Furthermore, by letter dated 14th March 2000 a Head of Unit in the Commission's Directorate General for the Environment stated that by reason of Article 2(1) of the EIA Directive:

"With regard to a planning process which includes a number of different stages such as "outline consent" or "reserved matters" I would suggest that it is up to the Member State to decide how it organizes its consent procedures, so long as all relevant impacts are assessed before consent is given".

73 Furthermore, I was told by Mr Sales, QC, who appeared with Mr Maurici and Mr Honey for the Attorney General, that the Commission had been informed of the measures taken by the United Kingdom to implement the EIA Directive and had raised no objection. Mr Béar QC, who appeared with Mr McClelland for the Claimant, requested disclosure of the correspondence on the point between the United Kingdom and the Commission; but although Mr Sales told me that the United Kingdom was prepared to consent to the disclosure, the Commission was not. I am however prepared to infer that the United Kingdom did disclose to the Commission its legislation in draft, and received no objection from the Commission: for it was required by Article 12(2) of the EIA Directive to notify the Commission of the implementing measures; and if it had failed to notify the Commission, or had received objections from the Commission, this would have been mentioned in the judgment in Case C-508/03, Commission v United Kingdom.

74 Furthermore, the developer voluntarily submitted a comprehensive environmental impact assessment before the authorization of reserved matters.

75 Having stated my conclusion on that issue, I should add that I do not accept the submission made on behalf of the Attorney General that any error made by the national courts was to be regarded as less than manifest because the judicial task involves "the choice of form and methods which pursuant to Article 249 EC is left to the individual Member States" or was "within the margin of appreciation allowed to a Member State under the EIA Directive" (Skeleton § 64). The legislative and executive authorities of the Member States do indeed enjoy a margin of discretion in determining the "form and methods" to be used in order to achieve the aims prescribed by directives. But the determination of the meaning of a directive is quite different from the choice of the form and method for achieving its aims. It involves judgment or appraisal but not discretion. The judicial task lacks the element of choice or discretion enjoyed by the legislator or administrator. (I suspect that any confusion between the functions of the executive and the legislature, on the one hand, and of the judiciary, on the other, derives from the mistranslation of the term "appréciation" into the English word "appreciation" rather "discretion".)

76 It is because the judicial exercise involves the use of judgment, upon which experts may differ, that the EC Treaty makes provision for references for preliminary ruling to the ECJ; and that Court recognized in the Köbler case the need to take account of "the specific nature of the judicial function", when determining whether any infringement by a national court is manifest. The specific nature of the judicial function involves the application of judgment to interpret provisions capable of bearing more than one meaning.

The Decisions in Respect of Revocation

77 In the judgments of Harrison J dated 21st December 1999 and that of Ward LJ dated 12th June 2000 I detect the same error of law as was made in the judgment of Richards J dated 26th October 1999 and of the Court of Appeal dated 21st December 1999. Harrison J and Ward LJ proceeded on the premise that the EIA Directive required Member States to consider the necessity for an environmental assessment before the grant of the outline planning permission (Harrison J's judgment §§ 20-24; Ward LJ's judgment, §§ 22-26). That premise was incorrect in the sense (but only in the sense) that it was inconsistent with the law as it was later stated to be by the ECJ in Commission v United Kingdom. In the same sense Ward LJ was incorrect in proceeding on the premise that the 1988 Regulations correctly implemented the EIA Directive (§ 39) since we know from Commission v United Kingdom that in one respect the Regulations did not implement the EIA Directive correctly.

78 I am however completely satisfied that these judgments do not disclose any error such as to give rise to liability pursuant to the judgment in Köbler.

79 The considerations set out above in §§ 68-74 apply to the error appearing in the judgments of Harrison J and that of Ward LJ as they do to the identical error appearing in the judgments of Richards J and of Singer J dated 21st December 1999.

80 Further both Harrison J and Ward LJ attributed importance to the fact that no suggestion had been made before them that the 1988 Regulations do not fully and accurately transpose the EIA Directive into English law (Harrison J § 18; Ward LJ §24). In accepting that 1988 Regulations fully and accurately transpose the EIA Directive into English law, the CPRE made the same error as that with which they now charge the courts.

81 Furthermore, the submission that the outline planning permission ought to be revoked cannot be derived from any principle of Community law obliging Member States take all necessary measures, including administrative measures, to achieve the result that the Directive prescribes. That is so because the Claimant accepts, and I find (§§ 62-65) that the approval of outline planning permission is now impregnable.

82 Furthermore, no such submission can be derived from the proposition that an assessment of the need for an environmental impact assessment should be determined at a later (implementing) stage of the planning process when the environmental effects of the development are not identifiable until the time of assessment of the implementing decision. I am not at all persuaded that in the present case the environmental effects of the development remained unidentifiable until the time of authorisation of the reserved matters. The judgment in Case C-508/03, Commission v United Kingdom lends no support to the proposition that the effects remained unidentifiable until that stage: rather the contrary.

83 In Commission v United Kingdom the ECJ reiterated its earlier ruling that projects likely to have significant effects on the environment must be made subject to an assessment with regard to their effects before (multi-stage) development consent is given. It then dealt specifically with the rule requiring (as it held) that where the planning process entails more than one stage, the need for an environmental impact assessment should be determined at the implementing stage when the environmental effects of the development are not identifiable until that stage. If the ECJ had considered that the environmental effects of the White City development were not identifiable prior to the approval of the reserved matters, so that an assessment of the need for an assessment ought to have been made at that stage, the Court would have said as much in Commission v United Kingdom.

84 In circumstances in which the CPRE had failed to show, even prima facie, that there had been a failure at an earlier stage to comply with the EIA Directive, it could not in any event establish an arguable case that that outline planning permission ought to be revoked. Accordingly the outcome of the proceedings before Harrison J and Ward LJ was unaffected by their adoption of the premise that the EIA Directive required Member States to consider the necessity for an environmental assessment before the grant of the outline planning permission.

 

The Failure to Make a Reference

85 A large part of the Claimant's case was devoted to the Court of Appeal's alleged failure to apply the judgment of the Court of Justice in Case 283/81, CILFIT, [1982] ECR 3415 governing references for preliminary rulings. Not only had the Court of Appeal, in both of its constitutions, failed to make a reference to the ECJ; but on both occasions (Mr Béar submitted) its methodology failed to comply with the CILFIT guidelines.

86 In the words of Mr Béar the CILFIT guidelines established "a mandatory methodology ... Failure to follow the CILFIT methodology is a manifest breach". I disagree. It is mistaken to construe the guidance given by the ECJ in CILFIT as an obligatory methodology to be applied by a court adjudicating at last instance when confronted with a question of interpretation of Community law. In CILFIT the ECJ was primarily concerned with the problem of determining whether a court adjudicating at last instance may decline to make a reference if it considers the point at issue sufficiently clear (acte clair). In resolving that issue affirmatively, the ECJ was anxious to warn national courts of the danger of regarding as clear those issues which, upon closer examination, might admit of more than one answer. I therefore agree with Mrs Advocate General Stix-Hackl who stated in Case C-395/03, Intermodel Transports BV v Staatssecretaris van Financiën, [2005] ECR I-8151:

"the requirements set out in CILFIT cannot be regarded as a type of instruction manual on decision-making for courts of last instance which is to be rigidly adhered to and on the basis of which an objective and clear dividing line can be drawn between questions of interpretation which may exceptionally be resolved by such courts themselves And questions of interpretation which must be referred to the Court of Justice. Those requirements cannot be used as a benchmark for establishing "objectively" when the meaning of Community law is so obvious as to leave no scope for any reasonable doubt as to its interpretation."

87 Independent of his submissions on the Court of Appeal's methodology was the Claimant's submission that that Court committed a manifest breach of Community law in its substantive decision to make no reference for preliminary ruling under Article 234 EC. In response to that submission the Attorney General maintained that Article 234 EC is not a provision intended to confer rights on individuals. Strictly speaking, this is not a matter that I have to decide: it falls outside the issues set down for preliminary determination by Cox J and it has not been the subject of detailed submissions before me. On first principles, however, I doubt that Article 234 is among the provisions "intended to confer rights on individuals"; but that is not the end of the matter, for where a court against whose decisions there is no judicial remedy considers that it is necessary, in order to give judgment, to determine a question on the interpretation of some other provision of Community law which is intended to confer rights on individuals, a failure to refer to the Court of Justice a question on the interpretation of that other provision may be relevant in determining whether a breach of that other provision was manifest. But the failure to refer the question can be relevant in establishing the seriousness of the breach of that other provision only if the national court considered - or ought to have considered - that it was necessary to interpret that other provision in order to determine the case before it. On the premise that Article 2(1) of the EIA Directive (supra § 5) is intended to confer rights on individuals, we must ask whether, in the proceedings instituted by the CPRE, the Court of Appeal was confronted with a question on the interpretation of Article 2 which can be shown to have been properly referable, in the light of Commission v United Kingdom.

88 The ECJ ruled in Commission v United Kingdom (§ 48) that it is only if the environmental effects of a development are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure. A ruling by the ECJ similar to that given in Commission v United Kingdom would not have resolved in the CPRE's favour its application for judicial review of the impending approval of reserved matters. It would have established only that projects likely to have significant effects on the environment must be made subject to an assessment with regard to their effects before (multi-stage) development consent is given. But that is not this case. As Richards J held and Harrison J repeated [1999] Env LR 565 at 566:

"With regard to the anticipated decision as to reserved matters, it was evident that the real target of the challenge was the original grant of outline permission"

Correctly Implemented Directives

89 The Claimant addressed particular criticism at a passage in the judgment of Ward LJ in which he quoted with approval the words of Schiemann LJ in Marks & Spencer quoted at § 31 above. In the words of Mr Béar, as I took them down, this meant that "once a directive has been implemented, that is an end of it". I would have no hesitation in rejecting as incorrect the reformulation of the words of Ward LJ as I understood Mr Béar to present them. It is obvious that a Member State's obligations in respect of a directive do not cease upon its transposition into national law. Member States also have the duty to ensure that the directive, once transposed, is applied effectively. For instance, any sanctions that Community law requires must be applied proportionately, without discrimination and in such a manner as to make the directive effective.

90 In the context in which Schiemann LJ and Ward LJ used those words, they were making the point that once a Directive had been correctly implemented - and the emphasis here is on the word "correctly" - it is to the national implementing legislation that the national court must turn its attention. I do not regard this statement as incorrect or even as controversial. It is the corollary of Article 249 EC.

Postscript

91 Although I have been impressed by the prodigious research devoted to this case by the Claimant, and by the courage and persistence with which it was advanced, I have concluded that these efforts were misdirected. Any contention that a court adjudicating at last instance can be said to have made a manifest error of Community law when its judgment is, in some respect, inconsistent with a later judgment pf the ECJ is as misconceived as it is inconsistent with the judgment in Köbler. Community law is a system in the process of constant development. This is recognized in the many judgments of the ECJ that refer to "the subsequent development of Community law applicable to this domain" (see most recently Case C 375/05, Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen für den Bereich Landwirtschaft, 4th October 2007, § 18.) This being the case, inconsistencies between national decisions and subsequent judgments of the Court of Justice can be expected to arise. Claims based on the Köbler case are to be reserved for exceptional cases, involving errors that are manifest; and in assessing whether this is the case, account must be taken of the specific characteristics of the judicial function, which entails the application of judgment to the interpretation of provisions capable of bearing more than one meaning.