Prokopp v. London Underground Limited and others

Transcript date:

Monday, July 7, 2003

Matter:

Court:

Court of Appeal

Judgement type:

Substantive

Judge(s):

Kennedy, Schiemann, Buxton LJJ

Case No: C1/ 2003/1058/A,

C1/2003/1058,

C1/2003/1060,

C1/2003/1061 & 1064

Neutral Citation No: [2003] EWCA Civ 961

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

COLLINS J

Royal Courts of Justice

Strand,

London, WC2A 2LL

Monday 7th July 2003

Before :

LORD JUSTICE KENNEDY

LORD JUSTICE SCHIEMANN

and

LORD JUSTICE BUXTON

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Between :

THE QUEEN ONTHE APPLICATION OF PROKOPP Appellant

- and -

LONDON UNDERGROUND LTD & ORS Respondent

STRATEGIC RAIL AUTHORITY Interested Party

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(Transcript of the Handed Down Judgment of

Smith Bernal Worwave Limited, 190 Fleet Street

London EC4A 2AG

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

Official Shorthand Writers to the Court)

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Richard Clayton QC, Richard Harwood & Christiaan Zwart (instructed by Richard Buxton and Co.) for the Appellant

Michael Barnes QC, , Eian Caws & Julian Greenhill (instructed by London Underground); Richard Gordon QC & Philip Petchey (instructed by London Borough of Tower Hamlets); Peter Harrison (instructed by London Borough of Hackney) for the Respondents

Anthony Dinkin QC & Robin Green (instructed by Linklaters) on behalf of the Strategic Rail Authority

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Judgment

As Approved by the Court

Crown Copyright ©

Lord Justice Schiemann :

I Introduction and History

1. Before the court are a number of appeals from a judgment of Collins J. They concern the effect of Directive 85/337/EEC as amended ("the Directive") upon rights and obligations arising under the Town and Country Planning Act 1990 ("The Act"). What has happened here is that, after an environmental impact assessment ("EIA") which was required under the Act and under the predecessors of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 ("The Regulations"), planning permission ("the Permission") was granted for a major infrastructure project. This has lapsed because of the expiration of a time limit imposed by condition attached to the Permission. The developer and the Local Planning Authorities ("the LPAs") are nevertheless anxious that the development should proceed swiftly.

2. The normal way of dealing with planning permissions which are about to lapse in such circumstances is for the developer to apply to the LPA under section 73 of the Act to vary the time condition. However, the adoption of that course in the circumstances of the present case would attract the need to start the whole consultation process required under the Regulations afresh and lead to delay. So the developer and the LPAs have in substance agreed that the developer should enter into a Planning Obligation under section 106 of the Act under which practically all of the conditions which were attached to the Permission would fall upon him. Meanwhile the LPAs have declined for the moment to take either injunctive or enforcement proceedings to stop the development.

3. In the present case we are not directly concerned with a planning permission granted under the Act but rather with a planning permission deemed to be granted by virtue of a direction given by the Secretary of State under s.90 (2A) of the Act. However it has been common ground that nothing turns on this distinction.

4. Mr Prokopp objects to what he considers is a by-passing of the public consultation process required by the Directive and has started these proceedings to which London Underground Limited ("LUL") and the London Boroughs of Hackney and Tower Hamlets (respectively "LBH" and LBTH") are defendants. The matter came before Collins J against whose judgment both Mr Prokopp and the LPAs appeal. The Strategic Rail Authority appears as an interested party in this court although it did not appear below. It supports the arguments of LUL and the LPAs.

The Background

5. LUL have long wished to build a railway line extension known as the East London Line Extension ("ELLX"). In 1993 they prepared a 2 Volume Environmental Statement and applied for an order under the Transport and Works Act 1992 which would authorise the project including the compulsory purchase of the necessary land and the grant of the necessary planning permissions and listed building consents. There was a public inquiry in 1994 at which many Local Authorities, English Heritage, environmental associations, tenant groups and indeed Mr Prokopp appeared. The Inspector wrote a long report in 1995. He recommended that an Order be made and that the Secretary of State direct that planning permission be deemed to be granted. In January 1997 the London Underground (East London Line Extension) Order was made and the Secretary of State directed that planning permission ("the Permission") be deemed to be granted for the extensions. LUL have served notice to treat and notice of entry.

6. The building of the extension of rather more than 4 kilometres is regarded as having huge public benefits justifying a substantial investment and no one before us has endeavoured to suggest the contrary. That said, as with any such project, there are persons who maintain that it is unsatisfactory in one way or another. In particular there are some, who include the present appellant Mr Prokopp, who are dissatisfied with what is proposed in relation to the disused Bishopsgate Goods Yard ("BGY") through which a couple of hundred metres of the line were planned to run.

7. BGY was built in the 19th century and, although much ravaged by time and fire and no longer in use, nevertheless contains a number of features of interest to those knowledgeable about railway architecture. In particular it contains the Braithwaite Viaduct which is now listed as a building of architectural interest. Although the proposals of LUL do not include the demolition of the Viaduct, LUL wish to demolish what remains of the structures to the north and build a new viaduct on the site of the demolished buildings. Some consider that this demolition and construction of a new viaduct is unsatisfactory because it will affect the setting of the Braithwaite Viaduct.

8. The Permission was subject to a number of conditions one of which, Condition 21, read as follows.

"The development shall not commence until the exchange land described in Article 30 of the Order has been made suitable for use as open space by

(i) the removal of redundant viaduct arches and other buildings

(ii) contouring the land to appropriate levels

(iii) providing a suitable depth of soil to support vegetation; and

(iv) providing landscaping in consultation with the relevant local planning authority. "

"Development" is widely defined in the Order so as to include not merely works on the BGY but much else besides.

"The Exchange Land" are two plots which form part of Shoreditch station.

9. The reason for this clause was that some land open to the public was originally required for some roadworks outside BGY and it was desirable to make available to the public some other land in exchange. In 2001 the LBTH requested a change in those roadworks. This was acceptable to LUL who proceeded accordingly. It thereupon became clear that LUL will not need all the special category land and may not need any of it. What was not, but should have been, clear to LUL was that the condition had been so framed as to make unlawful any start on the project until the landscaping on the Exchange Land had been carried out.

10. The problem which has now become apparent is that the landscaping on the Exchange Land cannot be carried out until Shoreditch station, through which some 300,000 persons pass per year, is closed but that the station cannot sensibly be closed until the new line has been built and is operative. Whether these points were appreciated by the person who framed the Condition does not appear. What is clear is that LUL did not appreciate the difficulty. Had they done so they would presumably have straightaway made an application pursuant to section 73 of the Act for permission to develop land without complying with the Condition and for the Condition to be removed or amended. The fact is they did not. They just went ahead and started the development by building a couple of bridges and by doing other works in breach of Condition 21.

11. Although neither the Exchange Land nor the Special Category Land was within BGY, this unauthorised action has been seized on by two litigants - Mr Hammerton and Mr Prokopp - who are opposed to a particular aspect of the implementation of the project - namely the carrying out of certain demolition works ("the Demolition Works") in BGY. They have used it in two actions, one launched after the other had failed, to halt further progress on the project. On each occasion they have been represented by Mr Richard Clayton Q.C. instructed by Richard Buxton. In the first action the attack was based on alleged breaches of what may loosely be called domestic planning law; in the second, the attack was based on breach of the Directive. Although we are solely concerned with the second action, it is useful briefly to describe the fate of the first.

R (Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin)

12. Mr Hammerton started proceedings which were heard by Ouseley J. Mr Hammerton sought so far as presently relevant:-

i) An order quashing the LUL decision to fail to provide an undertaking that it would not carry out the Demolition Works.

ii) A declaration that it was unlawful for LUL to carry out the works contemplated

13. So far as presently relevant, the case for Mr Hammerton was that the carrying out of the Demolition Works required planning permission and that LUL could not rely on the Permission since

i) A condition attached to it required that work be commenced within a five year period;

ii) Although work had indeed started within the five year period, this did not count because

a) the work which had been done had been done in breach of Condition 21 and was thus unlawful and therefore

b) the Permission had lapsed;

iii) The Demolition Works required planning permission because BGY was one building for planning purposes.

14. It being common ground that as a matter of law if the BGY is properly described as one building then planning permission was required for the proposal to demolish part of that building, it is not necessary to set out the reasoning which leads to this conclusion.

15. Ouseley J declared that material operations were undertaken in breach of the Condition but that was as far as he went. He neither quashed the LUL decision nor declared that it was unlawful for the LUL to carry out the works contemplated. He held that the decision on whether BGY was one building involved questions of fact and degree which it was for the Local Planning Authority ("LPA") to judge. His decision has not been appealed.

Events between the Hammerton judgment and the beginning of these proceedings

16. The LBH, in whose area that part of BGY is to be found through which the proposed extension is intended to run, resolved on 11February 2003:-

i) To ratify the decision made by chief officers that BGY constitutes one building

ii) To ratify the decision made by chief officers "not to serve an injunction at this stage in respect of works undertaken to non-listed structures at BGY [in their area]"

iii) To instruct the officers to ask LUL to submit a planning application accompanied by the appropriate environmental information

iv) To give the Chief Officers delegated authority to take any enforcement action in relation to any breaches of planning control [in this matter]

17. On 1 April 2003 it was reported to the committee that LUL had declined to submit a new application on the ground that to prepare an accompanying Environmental Statement, as admittedly would be required by the Regulations, would cause delay which could prejudice the funding and therefore the completion of the scheme. It was also reported that LUL had offered to enter into a Unilateral Planning Obligation under section 106 of the Act which would contain appropriate terms and requirements designed to control the way the work was carried out. It was pointed out that some works had already been started at BGY. The Committee resolved that:

"the Head of Planning and Law be authorised, in addition to the powers delegated by the Committee on 11.2.2003, to refrain from taking enforcement action where they consider that work is being undertaken in compliance with an appropriately worded Unilateral Planning Obligation ..."

18. Broadly similar developments took place in LBTH. No injunction was sought, no enforcement notice was served and negotiations proceeded between LUL and the LPAs as to the precise form of the Unilateral Planning Obligation.

19. Representations were made by various parties to the Secretary of State that the whole of the BGY should be listed as a building of historical or architectural interest. On 8 March 2002 she acceded to these in part : the Braithwaite Viaduct was listed but the rest of BGY was not. Since LUL did not propose to demolish the Viaduct, the listing did not halt the proposal in its tracks.

II The Present Proceedings

20. Mr Hammerton having failed and the Secretary of State having decided not to list that part of BGY which LUL intended to demolish, Mr Prokopp took on the baton and started these proceedings. He applied for the following relief:-

i) An order quashing the decision of LUL to demolish BGY

ii) An interim injunction to restrain LUL from demolishing any part of BGY pending the final determination of the proceedings

iii) An order quashing the decision of LBH to refrain from taking enforcement action against the construction of the ELLX if a planning obligation is entered into

iv) An order quashing the decision of the LBTH to refrain from enforcement action against the construction of the ELLX if a planning obligation is entered into

v) A declaration that it is unlawful for either of the LPAs to decide against taking enforcement proceedings without first taking environmental information into consideration

vi) A declaration that it is unlawful for LUL to undertake demolition works to BGY without first providing an Environmental Statement; and

vii) A declaration that it is unlawful for LUL to undertake ELLX without development consent

21. Collins J gave his decision which is available at [2003] EWHC 960 (Admin) on 2 May 2003 and granted the following relief:-

i) An interim injunction granted by Maurice Kay J on 31 March 2003 restraining demolition of BGY was continued until a decision is taken by the LPAs as to whether or not to take enforcement action

ii) He quashed:-

"the decision of LBH made on 1 April 2003 that the Head of Planning and the Head of Law be authorised ... to refrain from taking enforcement action where they consider that work is being undertaken in compliance with an appropriately worded Unilateral Planning Obligation ... entered into by the developer, to complete the ELLX ..."

iii) He quashed:-

"The decision of the LBTH made on 2nd April 2003 to ratify the decision of the Development Committee of LBTH

(i) endorsing the Head of Planning's views that the Council was not minded to take any enforcement action at this time in relation to any breaches of planning control at BGY subject to LUL providing an appropriate unilateral planning obligation ...

(ii) that the approval of the terms of the s.106 agreement be delegated to the Head of Planning in consultation with the Chair of the Development Control Committee"

iv) He declared that it would be unlawful for LBH and LBTH to resolve not to take enforcement action without a sufficient planning obligation under section 106 of the Act being in place

v) He gave permission to appeal to all parties.

22. The reasoning of the judge can, I think, fairly be summarised as follows. He held that that the Permission had lapsed, that the Permission was to be equated with the Consent referred to in the Directive and that therefore the Consent had lapsed, that the purpose of an Environmental Assessment was to consider the relevant environmental effects of the proposed development, that all of this had been done in the mid 1990s, that the only thing which had changed since then and which required further assessment was the listing of the Braithwaite Viaduct. In paragraphs 36 and 37 he held that it would be open to LBH and LBTH to decide that there had been substantial compliance with the Directive. In paragraph 38 he went rather further and stated that there had been substantial compliance with the Directive

23. He nonetheless quashed the decisions of the LPAs. This was because in his judgment the LPAs had not considered the effect of the scheme on what was now a listed building, namely the Braithwaite Viaduct, and what conditions should be imposed in the section 106 agreement to protect it. Those were matters which in his judgment should have been considered before a decision was taken not to take enforcement action. In those circumstances, the LPAs ought to re-consider whether or not to enforce although they would be acting lawfully if they came to the conclusion that it would not be expedient to enforce.

24. Mr Clayton, in his detailed written submissions, criticises the Judge for coming to conclusions for which no one had argued. Those conclusions were based entirely on an alleged breach of domestic planning law, namely a failure to take into account a relevant consideration. Mr Clayton made it clear before us that he made no challenge based on any failure to comply with domestic planning law. He accepts that under the Act the LPAs have a discretion as to whether or not to take enforcement proceedings. He accepts that, while in principle a challenge can be made under classic administrative law principles to the decision not to do so for the moment, in the present case he does not base his challenge on those principles. That is not surprising. It would be extremely difficult to persuade a court on the basis of the material before us that, absent the Directive, such a challenge should succeed. There is, to put it no higher, a perfectly tenable case that it is more in the public interest for the project to proceed than for it to be held up for yet further consultation or consideration. Undoubtedly, absent the Directive, it would be open to the LPAs to decide not to take enforcement proceedings. Mr Clayton has not sought to submit otherwise.

25. Mr Clayton therefore does not seek to uphold the declaration made by the judge that it would be unlawful for the LPAs to resolve not to take enforcement action without a sufficient planning obligation under section 106 of the Act being in place. Mr Clayton seeks the much more wide-ranging declarations set out earlier in this judgment.

26. LUL and the LPAs, while resisting the appeal asking for wide ranging declarations also themselves appeal against the injunction and declaration actually made by the Judge.

Events since the judgment below

27. On 10 June 2003 it was reported to the Planning Committee of the LBH that on that day LUL had signed a s.106 agreement which contained an undertaking not to commence demolition works in the vicinity of the Braithwaite Viaduct until a method statement has been agreed upon by the Councils. It was thereupon resolved that:-

"In the light of [that undertaking] the Head of Law and the Head of Planning be authorised ...to refrain from taking enforcement action where they consider that work is being undertaken in compliance with that undertaking."

III The Broad Submissions

28. The most relevant provisions of the Directive are set out in Appendix 1 of this judgment. It has been accepted throughout that the building of the ELLX is a project falling within paragraph 10(c) of Annex II to the Directive and that the Defendants are emanations of the State so as to entitle Mr Prokopp to bring these proceedings alleging breaches of their obligations under the Directive. The task is to see what these obligations are.

29. All sides agree on the following:-

i) There was an adequate EIA leading to the grant of the Permission and that this Permission was a valid consent for the purposes of the Directive;

ii) The Permission has lapsed under the Act because the project was not commenced within the 5 years specified in a condition attached to the Permission;

iii) Although as a matter of fact work was done within the 5 years which on its face would constitute a start of the project and would thus keep the Permission alive, this work does not constitute a start to the project as a matter of law and thus keep the Permission alive because it was work done in breach of Condition 21.

30. The LPAs and LUL make these broad submissions:-

i) The Directive is concerned with the process of authorising major projects and requires certain things to be done before major projects are authorised. What the Directive requires was done in the 1990s - there had then been an Environmental Impact Assessment

ii) The Directive makes no express provision as to what is to happen where there has been a breach of some condition imposed under a planning permission granted within a Member State such as the requirement to start a development within 5 years. There are no Community Law provisions governing the duration of planning consents or what is to be done if and when any conditions imposed on such consents are breached;

iii) Once a development consent within the meaning of the Directive has been given, the Directive only requires a second or third development consent in the circumstances set out in paragraph 13 of Annex II : changes in or extensions of the project may lead to the existence of a new project for which a new consultation process may be required pursuant to the Directive. However, it can not be suggested that what has happened in the present case falls within that category;

iv) In those circumstances LUL, while it may be carrying out what is unlawful development in breach of national law in continuing with the project and thus liable to enforcement proceedings, is not in breach of any requirement of the Directive. Similarly the LPAs are not in breach of any requirement of the Directive in not taking enforcement proceedings. The Directive makes no mention of these;

v) Under national law there is a discretion in LPAs as to whether or not to take enforcement proceedings in relation to those where are carrying out acts of development without planning permission;

vi) There could be circumstances where the refusal to take enforcement proceedings would be challengeable as unlawful under national law under normal administrative law principles as being an unlawful exercise of discretion. That is the way in which the purpose of the Directive is achieved in this country. That is how one would prevent the national authorities from standing by and not taking enforcement action in circumstances where either there never had been an EIA notwithstanding that the project fell within the Directive or where there had been a manifest change in or extension of the project. However, that is not the challenge made in the present case. Nor are the circumstances such that any such challenge could be mounted.

vii) It may be that in certain circumstances the failure by an LPA to take enforcement proceedings to stop unlawful development might entitle an individual to take injunctive proceedings in the courts. However the case neither has been put this way nor could it be put this way in the circumstances of the present case.

viii) While perhaps what has happened this year - namely an indication that the LPAs do not envisage taking enforcement proceedings provided that appropriate s.106 agreements are entered into and kept to - can be described as a development consent within the meaning of that word as used in the Directive where there has already been one, not every such consent requires a new assessment in accordance with Articles 5-10 of the Directive

31. Mr Clayton's challenge in the present proceedings is based purely on the alleged failure to comply with the Directive. In order to get that challenge off the ground he has, as he accepts, to show that in the circumstances of the present case there is a duty imposed by the Directive on the LPAs to put a stop to the whole ELLX project. The outline of his submissions is as follows:-

i) He submits that the framers of the Directive envisaged that no project of this kind should proceed without there being in force a consent issued by the LPAs;

ii) What the drafter of the Directive envisaged was that throughout the execution of the works there should be in force a development consent issued by the appropriate national authorities;;

iii) The Directive envisages that the consent should have been obtained after a full EIA;

iv) Such a consent issued by the appropriate national authority was indeed obtained in 1997 but is no longer extant;

v) Even if the decision not to take enforcement action provided that there is an appropriate s.106 agreement is in place can be regarded as a consent for the purposes of the Directive, that decision has not been reached by the processes envisaged by the Directive;

vi) Therefore there is not now in force a consent which has been reached by the process envisaged by the Directive.

32. This in my judgment is the most persuasive way of putting Mr Prokopp's case. It was this submission that attracted Collins J.

IV Discussion

33. The Directive has provisions designed to ensure that "before consent is given" for the Projects identified in the Annexes to the Directive various procedures are carried out and an Environmental Impact Assessment ("EIA") is made - Articles 2, 5, 6, and 8. Broadly, the developer has to provide certain information and to apply for development consent, the information provided by the developer and any other information gathered by the competent authority must be made available to authorities likely to be concerned by the project and to the public, and the results of consultations and information gathered must be taken into account before development consent is granted.

34. The Directive has been transposed by the Regulations. No formal submission have been made before us as to the legality of this transposition although it seems implicit in Mr Clayton's argument that he submits that the Regulations have not correctly transposed the Directive in as much as they do not provide for an obligation to take enforcement action in any circumstances.

35. It is common ground that the appropriate procedures were gone through before consent was given. On the face of it the obligations imposed by the Directive and the Regulations have been fulfilled.

36. It can happen that an approved project is changed or extended in such a way that its execution would cause a significant effect on the environment. In some circumstances a failure to abide by a condition designed to mitigate the effects of a project on the environment might well fall within this paragraph. This situation is dealt with in the Directive by paragraph 13 of Annex II. However no one has suggested that the present is such a case.

37. However, Mr Clayton submits that implicit in the Directive is an obligation to have a national development consent in force throughout the implementation of the project. In support he cites Aannemersbedrijf P.P.Kraaijeveld B.V. and others v Gedeputeerde Staten van Zuid-Holllland Case C-72/95[1996] ECR I- 5403. This case establishes that the scope of the Directive is wide and its purpose very broad and that one should not construe the Directive in such a way as to undermine its purpose. I of course fully accept this.

38. I would accept for the purposes of the present appeal that if a project which falls within the Directive goes ahead without there having been an Environmental Impact Assessment and the national authorities simply stand by and do nothing then this might well amount to a breach of our obligations under the Directive. But that is not this case.

39. The fact is that the Directive does not attempt to impose on Member States detailed control throughout the implementation of a project. Many things are left to Member States to sort out as they deem best.

40. Thus it can happen that the execution of a properly authorised project suddenly causes more environmental problems than were envisaged at the time of authorisation. There is nothing in the Directive which deals with that situation. National Authorities are left to cope with those problems as best they can. Again, I note in passing that there was no sustained argument that such is the present case.

41. Similarly it can happen, as has happened here, that a developer breaks a condition imposed on a national consent and that under national law that has the effect of causing the consent to lapse. Whether similar provisions exist in other national laws we have not been informed. In any event, this situation is not dealt with explicitly by the Directive. No national or ECJ decision has been placed before us which decides that in such circumstances the processes envisaged by the Directive must always start afresh.

42. I do not accept that the purpose of the Directive will be undermined if Member States are in general left free to police, in whatever manner they regard as appropriate, the progress of a project once it has started. What has happened here is that a time condition was imposed by the national authorities. The imposition of that condition was not required by the Directive. In my judgment it is not implicit in the Directive that where that condition is then broken the national authorities must start the consultation process required by the Directive all over again. Nor will the purpose of the Directive be undermined if, in circumstances such as the present, the LPAs decide not to take enforcement action provided that certain conditions are fulfilled by the developer.

43. I accept that under the Regulations as they currently stand, had a s.73 application been made in time for a variation of the conditions governing the Permission then the Regulations would have required that the full consultation process to be undertaken. It would be odd, submitted Mr Clayton, if the failure by reason of oversight to do something in time resulted in it not being necessary to do that something at all.

44. This submission, engagingly as it was put, confuses domestic law as encapsulated in the Regulations and the Directive. We are not concerned with rules in domestic law as to what may be lawfully considered by a LPA when considering a section 73 application. It is established in domestic law that, when a planning permission has lapsed and an application is made to extend the time limit, the LPA is entitled to reconsider the principle of development. But this is of no relevance to the present debate. We are concerned purely with the Directive and with whether it requires enforcement action in the situation under consideration.

45. Moreover, it seems to me that if - contrary to my view - one regards the proposal to continue with the project notwithstanding that Condition 21 and the time condition have been broken as a new project for which the Directive requires a new authorisation, what is sought to be achieved by the Directive in terms of useful input by authorities likely to be concerned and by the general public has been achieved. In those circumstances, I regard further interference by the court in the circumstances of this case by way of injunction or other relief to be unwarranted and not compelled by the Directive.

46. The first, and in my judgment decisive, question in the present case is whether the decisions taken by the LPAs in relation to enforcement proceedings are properly characterised as development consents within the meaning of Article 1, namely, as being the decisions of the competent authority which entitle the developer to proceed with the project. If the answer to this question is in the negative Mr Prokopp's appeal must fail.

47. On the facts of the present case, it is clear that such entitlement if any as the developer has to proceed with the project stems from the fact that the Permission was granted in 1997. The resolutions of the LPAs which I have set out above do not give any such entitlement and indeed it was common ground amongst all parties before us that the LPAs are entitled to serve enforcement notices should they so wish and they have not promised not to do so in the future. The LBH resolution of 1 April 2003 merely authorises the Head of Planning to refrain from taking enforcement action. The LBTH resolution of 2 April 2003 merely endorses the decision not to take action "at this time". That in my judgment is enough to dispose of Mr Prokopp's appeal and to lead to the conclusion that it should be dismissed.

48. As a matter of general principle, where a developer is acting in breach of planning control it is in the first instance for LPAs not the court to consider whether to take enforcement proceedings. LPAs are only entitled to do so where they consider it expedient. For reasons which one can easily understand, they did not consider it expedient in the present case. In those circumstances the court will in general only act if there is reason to believe that the LPAs have acted unlawfully.

49. The only unlawful act which Mr Clayton seeks to ascribe to the LPAs is the admitted failure to take enforcement action. For the reasons which I have given, even if one rejects all arguments based on the 27.8.1997 "planning permission", referred to by Buxton LJ, and accepts that LPAs have a discretion as to whether or not to take enforcement action in the circumstances of the present case, there is no obligation to do so either in domestic law or by reason of the Directive.

50. If I am right in that, then it follows that the Court should also refuse all the relief sought by Mr Prokopp. If, contrary to my view, the LPAs are compelled by the Directive to take enforcement action then for my part I would hesitate before refusing relief as a matter of discretion.

51. Since preparing the foregoing I have read in draft the judgment of Buxton LJ with which I am in substantial agreement.

V The preparation of this case

52. Before leaving this case I should point out that the way the papers were prepared before us was entirely unsatisfactory. We were hearing an appeal and one sees the need for judgments of Ouseley and Collins JJ, half a dozen or so authorities and perhaps 150 pages of other material. However literally hundreds of pages none of which we were required to look at were photocopied many times. These pages included authorities and copies of original documents exhibited to statements by the claimant's solicitor which allege that she believes that they are "relevant" to either this action or the action tried by Ouseley J. Even if one were prepared to accept - which I am not - that they were all relevant to those actions they were certainly not relevant to the appeals before us. Their production before us not only involved a grotesque waste of environmental assets such as trees but an equally grotesque waste of public money and judicial time and energy in laying one's hand on the few documents and authorities which are relevant. It is the duty of Counsel and solicitors to go through material in order to decide what is relevant. Counsel apparently did this and referred to what they thought was arguably relevant. Yet far more was placed before us.

VI Disposal

53. I would dismiss Mr Prokopp's appeal and allow the remaining appeals.

Lord Justice Buxton :

Introduction

54. I gratefully adopt the account of the development of the case and the notation contained in the judgment of Schiemann LJ. I agree with the disposal of the appeal and cross-appeals that he proposes. In view of the importance of the matter I venture to add some words of my own.

55. Granted its premises, the appellant's case was compellingly simple. Its main elements were:

i) Condition 21 was a condition precedent to the lawful implementation of the 1997 planning permission. Since the condition had not been fulfilled during the lifetime of the permission, the latter had now lapsed.

ii) In order for the ELLX now to proceed lawfully, a new planning permission was required.

iii) That permission, or a decision of the local planning authorities not to require such a permission, would, as Collins J had found in §24 of his judgment, be a "development consent" in the terms of article 1(2) of Directive 85/337 [the Directive].

iv) Such development consent could, under the terms of the Directive, only be granted after an EIA.

v) That EIA must extend to the whole of ELLX project, since the project no longer had planning consent and could only recover such consent by a fresh decision by the planning authority.

vi) No new EIA had been undertaken and, contrary to the finding of Collins J, the existing 1992 EIA together with subsequent additions could not count as an EIA relevant to the new consideration required in 2003.

vii) It was therefore unlawful to proceed with any part of the ELLX until a complete EIA had been undertaken and the planning authorities had granted permission after consideration of the EIA. In the meantime, the planning authorities should take enforcement action in respect of any implementation of the development.

viii) The new EIA might or might not lead to a change in the plans as they affected the BGY. That was a matter of judgement, but judgement that could only be lawfully exercised after and in the light of a new EIA.

56. It will be seen that this line of reasoning leads to an extremely surprising outcome. The only expressed concern of the appellant, or of anyone else who has interested themselves in this matter, is in relation to the BGY and, more particularly, the Braithwaite Viaduct. However, the event on which, and only on which, the legal enquiry rests, the failure in respect of condition 21, has nothing at all to do with the BGY, and condition 21 was not imposed with protection of the BGY in mind. And although the only reason for bringing these proceedings on the back of the breach of condition 21 is to protect the BGY, the legal remedy that they seek is a re-examination of the totality of the ELLX project, the great majority of which is not the subject of any sort of expressed concern, whether by the applicants or by anyone else.

57. I am satisfied the EU law neither compels nor permits so surprising a conclusion, as I will demonstrate under the following heads:

i) A failure to take, or a deliberate decision not to take, enforcement action by a British planning authority does not constitute "development consent" in the terms of article 1(2) of the Directive. The appellant's case therefore necessarily fails.

ii) Even if the general proposition in (i) were incorrect, whether a particular failure constitutes development consent in the terms of the Directive must be determined on the basis of a purposive approach to the objectives of the Directive. On that basis, the environmental control objectives of the Directive do not require a further environmental assessment by reason of the breach of condition 21, and therefore a decision taken in relation to condition 21 cannot be a relevant development consent.

iii) Alternatively, a decision to permit the ELLX project to proceed without adherence to condition 21 is to be analysed as a change in the ELLX project. By §13 to Annex II to the Directive that change, the omission of condition 21, only requires an EIA if it "may have significant adverse effects on the environment". It has not been contended and it would not be possible rationally to contend that failure to perform condition 21 qualified under that rubric.

iv) If, but only if, the contentions in (i)-(iii) were incorrect, an EIA is required in relation to the project as it stands in 2003. It is seriously arguable that such an EIA or its substantial equivalent exists.

v) If the contentions in (i)-(iv) were all incorrect, the ELLX could only be prevented from going forward by enforcement action on the part of local planning authorities concerned. LBH is precluded, by reason of a planning permission granted by it on 27 August 1997, from taking enforcement action in respect of demolition, and thus in respect of the project, in such parts of the BGY as falls within its area. If LBH cannot take enforcement action in respect of the parts of the BGY that fall within its area, it would be irrational under the doctrine recognised by this court in Whitley v Secretary of State for Wales [1992] 3 PLR 72 for LBTH to take such action in respect of the parts of the BGY that fall within its area. It therefore follows that

a) The ELLX project cannot be the subject of any enforcement proceedings, or at least of any of the enforcement proceedings relied on in this appeal; and

b) Any failure on the part of the two local authorities to take enforcement action cannot amount to "development consent" by those local authorities, because they are in any event precluded by domestic law from giving that consent; and it has not been argued that the United Kingdom's obligations in transposing the Directive require the limitations just set out on enforcement action to be disapplied in cases involving environmental impact.

vi) If the contentions advanced in all of (i)-(v) above are incorrect, the court should exercise its discretion in refusing relief.

I deal with these matters in turn.

"Development consent"

58. It may seem obvious that a failure to take enforcement action after a planning permission has lapsed is a

"decision of the competent authority or authorities which entitles the developer to proceed with the project"

I have however been led by the arguments of counsel to see that that is not the case.

59. This question has to be considered in the context of the Directive as a whole, as the appellant required in emphasising that he placed his case squarely on the Directive. That was a necessary step on his part, since the domestic Regulations, the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 only require an EIA on the occasion of an application for planning permission: which a failure to take enforcement action neither is nor entails. I however agree with Mr Dinkin that in this respect, and contrary to the implications of the appellant's argument, the Regulations have correctly transposed the Directive. The whole scheme of the Directive is that Member States must ensure that before a relevant "project" is put in hand the developer submits a formal assessment of the project's impact on the environment (Articles 2(1) and 5, and Annex 4). The emphasis is on prior assessment and approval of the project, not on continuous assessment of it in the light of developments in the course of its completion. That is also the analysis of the process made by Lord Hoffmann in Berkeley v Environment Secretary [2001] 2 AC at p617D:

"The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information [emphasis supplied]"

Some further, modest, support for the view that development consent is limited to the initiation of the project may also be obtained from the French text of the definition of development consent:

"la décision....des autorités compétentes qui ouvre le droit du maître d'ouvrage de réaliser le projet"

60. In our case, both in law and in commonsense terms the "project" is the whole of the ELLX. For that reason, as Mr Gordon pointed out, the fact that by a rule of the domestic law of a particular member state further permission is required in the course of the project, though for reasons unconnected with its environmental impact, does not mean that the granting of such permission must be treated as a "development consent". Indeed, quite the reverse. The relevant and only such consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.

61. Further, it is even less likely that not a formal permission in the course of the project, but what we have here, a failure to interrupt the project, is a development consent in terms of the Directive. Both Mr Barnes and Mr Dinkin pointed to aspects of the wording of the Directive that supported that view. Thus, such failure does not entitle the developer to proceed, but merely leaves him to proceed at his peril. They said that it was difficult or impossible to fit that circumstance into not merely the formal wording but also the scheme of the Directive, which requires the consent to be preceded by a detailed application. No such "application", in the terms envisaged by the Directive, was made or would be appropriate or, indeed, comprehensible where what was sought was an assurance that enforcement action would not be taken.

62. I doubt whether these considerations were put before Collins J with the force and in the detail that they enjoyed before us. I am satisfied that, if Collins J had been led to appreciate the full implications of the Directive, he would not have held that a decision in the middle of a project not to take enforcement action in respect of a breach of domestic law was a "development consent".

63. For the reasons indicated, therefore, the appellant's case falls at the first hurdle. I will however go on and consider some of the many other matters that were ventilated before us.

This particular decision as a "development consent"

64. What Collins J did hold, in §24 of his judgment, was that

"The Directive is to be given a purposive construction. So much is clear from [R v North Yorkshire CC ex p Brown [2000] 1 AC 397]. Its purpose is to ensure that decisions entitling developers to proceed with projects which might affect the environment are made on the basis of full information. A decision not to take enforcement action against a development will allow that development to proceed.....If a decision not to take enforcement action were not within the Directive, there would be a real possibility of avoiding the requirement to provide an EIA in a particular case. Accordingly, I am satisfied that in principle a decision not to take enforcement action is a development consent within the meaning of the Directive."

65. This, however, emphasises that the purpose of scrutinising "development consents" is to ensure that relevant projects receive a proper environmental assessment. In accordance with that purpose, it is plainly relevant to ask whether a particular alleged development consent does indeed provide a vehicle for development that raises environmental issues. That, with respect, was the approach of Lord Hoffmann in Brown's case to applications under schedule 2 to the Planning and Compensation Act 1991, which he characterised, [2000] 1 AC at p 403, as

"a new and freestanding examination of the issues [which] could therefore in my opinion require the information provided by an EIA. It was therefore a "development consent" within the meaning of the Directive."

Whether a decision to allow a project to continue, but which is not obviously a development consent, should nonetheless be treated as such therefore depends on whether the permitted process reasonably requires an EIA. The enquiry starts from the reasonableness of requiring an EIA, rather than from a theoretical characterisation of the process as a development consent, from which the need for an EIA necessarily follows.

66. Judged by this approach, and even if, contrary to the conclusions reached under head (i) above, a failure of enforcement can count as a development consent, the failure to take action in respect of the breach of condition 21 clearly cannot be so characterised. The breach has never been suggested to produce significant environmental impacts, and certainly does not require the information provided by an EIA. On that basis also, therefore, there is no development consent in this case.

67. In relation to the concern expressed by Collins J as to avoidance of the requirements of the Directive, if at the stage when issues as to development consent properly arise, at the commencement of the project, deliberate decisions were taken simply to ignore the development, then, as Mr Barnes pointed out, action could be taken in domestic public law to challenge such breach of duty. But this is not that case.

An amendment of the project

68. Somewhat allied to the foregoing argument is Mr Barnes' contention that, if the failure to take action in respect of condition 21 was to be characterised as a "consent" at all in relation to the project, it was simply a consent to the project proceeding in an amended form, without the obligation imposed by condition 21.

69. This seems to me, with respect, to be a realistic way of characterising the facts of this case. Such an amendment of the project only falls within the EIA requirements of the Directive if (by §13 of Annex II) it "may have significant adverse effects on the environment". That question is akin to that arising under the threshold test under schedule 2 of the Regulations, which is a matter for the judgement of the national authority, constrained only by the Wednesbury principle: see per Sullivan J in R(Malster) v Ipswich BC [2002] PLCR 251[61], approved by this court in R(Goodman) v Lewisham BC [2003] EWCA Civ 140. It has never in fact been suggested, and it is inconceivable that it could be suggested, that a failure to perform condition 21 in the circumstances existing could have a significant effect on the environment. That step, viewed as an amendment of the ELLX project, is therefore not a relevant development under the Directive, and accordingly does not require development consent.

Substantial compliance

70. Collins J, drawing on observations by Lords Bingham and Hoffmann in Berkeley v Secretary of State [2001] 2 AC 603, held that it was open to the local authorities to find that, even though there had not been an EIA in form, there had been substantial compliance with the requirements of the Directive, entitling the planning authorities to grant "development consent" without further enquiry or publicity. It will be appreciated that, since I have found that the task upon which the authorities were engaged did not involve the granting of development consent, this issue does not in my view arise. Consideration of it is therefore hypothetical; and also and in any event highly artificial, in a way that further demonstrates that the local authorities' decisions are not ones of development consent. That is because this intellectual exercise involves fitting the requirements laid down by the Directive for the initial overall review of the environmental implications of a major project into a decision not to inhibit that project during its progress because of a breach of the terms of a domestic law rule with no environmental implications. However, because a great deal of attention was given to the question before us, I will consider it further.

71. I make three preliminary observations. First, Mr Clayton pointed out that the language of "substantial compliance" was not to be found in the European jurisprudence. That is so, but the doctrine is plainly drawn from that jurisprudence and discussed in those terms by the House of Lords, in particular by Lord Hoffmann at [2001] 2 AC 616-617, a passage that binds us. Nor, in my respectful view, did Lord Hoffmann, despite his concern about the "paper chase" that was required in Berkeley itself, necessarily exclude what was contended for in the present case, an original EIA that was added to in an accessible way to meet later developments: though I recognise that that submission must be made with caution since, as the quotation from his speech set out in §59 above demonstrates, Lord Hoffmann was contemplating nothing other than a single statement at the start of the development process. Second, Mr Clayton criticised Collins J for saying, at §32 of his judgment, that in assessing "substantial compliance"

"The issue is one of balancing the benefits of the ELLX against any environmental damage to be caused by it"

Mr Clayton was right to submit that, on the premises on which this part of the argument proceeds, "balance" and the benefits of the ELLX have nothing to do with it. If the law demands an EIA, an EIA there must be, however much it may appear that the EIA will not and should not result in any inhibition of the project. To think otherwise was, indeed, the error committed by this court that was corrected in Berkeley. Third, if Collins J was right, and there was in this case what Lord Hoffmann called an EIA by any other name, then it was not open to Collins J to impose or require further considerations or conditions by way of a section 106 agreement. Either the environmental assessment requirements had been met, in which case the authorities were free to proceed; or they had not been met, in which case a section 106 agreement, however sensible it was as a general precaution, could not fill the technical gap.

72. As to the substance of the point, Mr Clayton had some reason to complain that the various adversaries ranged against him explained the achievement of substantial compliance in different ways, some of which did not agree with the grounds on which Collins J based his conclusion. The most sustained arguments were those of Mr Barnes and Mr Dinkin. They both pointed to the 1993 Environmental Statement, which no-one had suggested to be inadequate. On the assumption that the EIA bites at the inception of the "project" (which for the reasons already set out I consider to be the law), even if the developments since 1993 (effectively, the listing of the Braithwaite Viaduct, with implications for the method of protecting it and its "setting"; and the production of the Baxter Report) could be taken into account, they could not be said to be of such significance in the context of the project as a whole as to make the 1993 Statement no longer referable to that project. However, on the assumption, adopted for the purposes of the present stage of the argument, that a new EIA was required as soon as the project lost its domestic law planning permission, did the 1993 Statement together with action taken in respect of the new developments suffice to ground an EIA in 2003?

73. First, I accept the submission that the sources relied on do not fall under the condemnation as a paper chase of the kind criticised in Berkeley. Even if the premise is accepted that EIAs can be required iteratively during the life of a project, it really would be a victory of technicality over reason not to permit the new EIA to take the form of the old EIA plus, accessible analysis of the new developments. Second, however, is the analysis of the new developments that is relied on indeed accessible in the sense that the Directive requires?

74. Common sense cries out that everything reasonably necessary has been achieved. The merits and implications of the BGY have been extensively canvassed in the statutory listing process. The method statement for demolition has been negotiated with the local authority, to the extent that work cannot start until protection for the Braithwaite Viaduct has been secured. The Baxter report has been in the public arena, promoted by English Heritage, for over a year. LUL has pointed out its tentative and incomplete nature, requiring much further study. Since on everyone's view ELLX, if it is built at all, will go through the BGY, near to the Braithwaite Viaduct, the only question as to "setting" is whether it should run on the viaduct as proposed by LUL or the existing structure as proposed by Baxter. It is very difficult to see how the latter proposal would make a significant difference to the setting of the Braithwaite Viaduct; and as a proposal with merit in itself it was criticised in strong terms by the Inspector in 1995. As to consultation, the only persons who have shown an active interest in these matters are English Heritage and Mr Prokopp. English Heritage has expressed itself content, however reluctantly, that the ELLX should proceed as proposed. Mr Prokopp is not of the same mind as English Heritage, but he can hardly say that he has not had an opportunity to put his point of view.

75. Mr Clayton however argued that none of those considerations were open to us. The full terms of the Directive must be honoured. In particular, publicity and consultation must be done all over again, in the mode required by articles 5 and 6 of the Directive. That had not been achieved by decisions publicised in advance by and then taken by the local authorities, even though on the basis of detailed reports that were available to the public. What should have happened was a more formal public consultation on the relative merits of the LUL and the Baxter schemes; and on the implications for the Braithwaite Viaduct. That might well flush out objections and objectors who had not emerged during the well-publicised exchanges of the last year. And although, perhaps understandably, Mr Clayton did not stress this point at this stage of his argument, it necessarily followed from his contention that the EIA must address anew the whole of the ELLX project, that old or new objectors to any part of the project, and not just in respect of the Braithwaite Viaduct, must have an opportunity to add or renew their complaints.

76. While, like the judge, I see the force of all this, I respectfully agree with his further observation in §35 of his judgment:

"Mr Clayton's arguments are based on the technical requirements for an EIA. They do not take proper account of the purpose of an EIA, namely that full information should be provided of the relevant environmental effects of a development"

In the present case, even if an EIA were required in the context of a decision not to take enforcement action, details of the new developments since 1992, and full comment upon them, will be before the planning authorities. In my view, like that of the judge, that suffices to fulfil the obligation under the Directive. And although too much should not be read into the literal wording of a Directive, for my part I am satisfied in terms of article 6(2) that "the public concerned" about the Braithwaite Viaduct has had ample opportunity to express itself.

77. Accordingly, if I were required to decide whether, artificially assuming that the failure to take enforcement action amounted to a development consent, such consent had been sufficiently informed in the terms of the Directive, I would hold that it had been so informed.

78. That conclusion is also relevant to another issue raised by the appellant, that the proper course for LUL, omitted by oversight, had been to apply under section 73 for release from condition 21. If such an application had been made, it would have required an EIA. LUL should not be permitted to avoid by oversight a condition that would have applied had they followed the correct procedure. That submission is of course appealing in general terms, but again it ignores reality. If LUL had so applied before the listing of the Braithwaite Viaduct and the production of the Baxter report, there would have been no reason at all not simply to rely on the 1993 Environmental Statement; I would go so far as to say that the planning authorities would have had no standing to ask for anything else. Had LUL so applied in the new circumstances, the authorities would have taken, and would have been justified in taking, the same attitude as to the existence of sufficient environmental information as they have adopted in the present circumstances.

Irrationality of enforcement action in any event

79. This argument is summarised in § 57(v) above. If it is correct, it precludes enforcement action against LUL in any event, irrespective of the correctness or otherwise of the arguments deployed above. Since the point only applies in this case if the LBH 27 August 1997 document was indeed a planning permission it will therefore be convenient to take that point first, out of logical order.

The 27 August 1997 "planning permission"

80. It is clear that what Railtrack applied for was listed building consent. The issue document referred, as the vires for a condition that it imposed, to the listed building and not the planning legislation. Nonetheless, the document is unambiguously described as, and purports to be, a planning permission.

81. LUL had never seen this document until it came to their attention at a late stage of these proceedings. If they were to be permitted to rely on it now, that would be an adventitious benefit brought about by largely irrelevant circumstances: but use of the document would not be the only aspect of this case to which that description could be applied. While I understand the disquiet of the judge at applying this argument, I see no escape from the conclusion that the "permission" cannot now be avoided, and runs with the land for the benefit of LUL. While it has some irregularities on its face, they are not enough to support an argument that the document is ambiguous or incomprehensible, and thus must be construed in the light of its history and the intentions of its makers. Moreover, as a public document of record, it is valid until set aside: something for which no application has been made, and would in any event be well out of time.

82. I therefore conclude that LBH cannot now in any event enforce against the ELLX project that affects that part of the BGY that falls within Hackney. That being so, I did not understand it to be challenged that it would be irrational for LBTH to enforce in respect of such part of the BGY as falls within that borough. Did that mean, within the approach in the judgment of Woolf LJ in Whitley v Secretary of State for Wales [1992] 3 PLR 72, that even though the first steps in the development of the ELLX had been taken in breach of condition 21, they were nonetheless effective to commence that development before the date of expiry of the planning permission?

83. The "Whitley principle" is that development in breach of a condition is not development relevant to the planning permission, and thus must be ignored for the purposes of deciding whether that permission has been implemented. Woolf LJ however recognised an exception to that principle, in cases where enforcement action in respect of the breach of condition would not be possible: that is, would constitute a breach of the authority's public law obligations. Mr Clayton argued strongly that that exception must be strictly limited, relying on the judgments in this court in the subsequent case of Henry Boot Homes v Bassetlaw DC [2003] 1 P&CR 372. There the developer relied on what he alleged was a legitimate expectation that the condition would not be enforced. Keene LJ, at §§ 55 and 56 of the leading judgment, emphasised that such claims, while not necessarily to be excluded, must be treated with great caution. The public nature of the planning process was inconsistent with giving effect to private understandings between the developer and the planning authority.

84. I would venture the following comments. First, there is nothing in Boot to suggest that Woolf LJ's recognition of the possibility that public law rules might inhibit enforcement was limited to cases where, as alleged in Whitley, it would be unfair to enforce because, as in that case, a consent lacking at the date of development had been obtained by the time that enforcement was contemplated. Indeed, at p86B of the report in Whitley Woolf LJ treated that as only a particular example of matters to be reviewed at the enforcement stage. Second, while I respectfully give great force to the observations in Boot referred to in §83 above, the claim made by LUL does not seek private exemption from the planning process but rather, in however unusual and accidental a form, relies on the binding nature in rem of the public documents produced by that process.

85. I would therefore respectfully agree with the view of Ouseley J in Hammerton that irrationality of enforcement action falls within the public law exception to the Whitley principle; and with the submission of LUL that this case falls within that rubric. Enforcement action is therefore not available in any event against the continued development of the ELLX.

86. That enforcement action is not available to the local authorities has another implication, which I have summarised in § 4(v)(b) above. This implication was not explored before us, but as at present advised I see no escape from it. If the local authorities withold enforcement action not by a discretionary decision, but because the domestic law so requires, I do not see how that rule of the domestic law can sensibly be characterised as giving or entailing a development consent. To contend otherwise would entail the contention that transposition of the Directive required the disapplication of those rules of the domestic law in cases involving environmental impact. I would venture to regard that as a step too far: or, at least, too remote from anything with which the Directive deals.

Discretion

87. This issue does not arise for decision. However, out of abundant caution I would finally add that, where the only failing of the local authorities has been not further to publicise views and options in connexion with the effect of the project on the Braithwaite Viaduct, then, even if that were to constitute a failure to obtain an EIA before refusing to take enforcement action, I would without hesitation refuse the appellant any remedy in respect of that failure.

88. The need for and benefits of the ELLX are undisputed. Extensive evidence has been filed by LUL and by the Strategic Rail Authority demonstrating that in practical terms there is no alternative to the present plans, and that any further delay would almost certainly be fatal to the project. That evidence, which comes from technical professionals and not just from administrators, has not been challenged. I say that because, although the appellant's solicitor filed a witness statement criticising some of it, that was, as he frankly said, a contribution from a non-expert. The appellant has called no engineering or professional evidence of his own. There has been no evidence from English Heritage or even from Mr Baxter: as opposed to the exhibition to a solicitor's witness statements of reports that are in law hearsay and in practice not subject to cross-examination. There is therefore nothing that the court can properly put in the scales against the overwhelming weight of evidence in favour of permitting the ELLX to proceed without further delay.

Conclusion

89. I would dismiss the appeal of Mr Prokopp and allow the cross-appeals of LUL and the two local authorities. The local authorities are free in law to take no action to inhibit the continued development of the ELLX.

The preparation of this case

90. I would wish, strongly, to associate myself with what has fallen from my Lord in his §52. The serious waste, and inconvenience for the court, resulted not merely from excessive use of the copying machine, but also from disregard of clear requirements imposed by the court, not for bureaucratic reasons, but to achieve economy in the interests of litigants and, not least, of public funds. The skeleton argument should be filed with the application for permission to appeal. Early attention needs thereafter to be given to whether it should be amended or supplemented. That and any other skeleton should clearly indicate to those preparing the bundles what documents are sufficiently relevant to be included. The skeleton should also clearly identify what authorities, and what parts of what authorities, are relied on, and carry the certification of counsel as required by the Lord Chief Justice's Practice Direction [2001] 1 WLR 1001. None of the last requirements were respected in this appeal. Had they been, the vast number of authorities copied many times over for the court, many of which were not referred to at all, would have been substantially reduced. These are, I regret, failings that continue to be common amongst those appearing before this court. This appeal however gives a particularly clear demonstration of why such rules are needed, and need to be obeyed.

Lord Justice Kennedy :

91. I have read in draft the judgments of Lord Justice Schiemann and Lord Justice Buxton, and I agree that the appeal of Mr Prokopp should be dismissed and the other appeals should be allowed for the reasons that my Lords have given. In particular I agree that the decisions of the local authorities not to take enforcement proceedings cannot be regarded as amounting to a development consent for the purposes of article 1(2) of the Directive. I also endorse what they have each said about the preparation of this case. I do not find it necessary to express any view on the final issue canvassed by my Lords, namely discretion to refuse relief.

Order: Appeal allowed; cross- appeal of London underground LTD and the two local authorities allowed; the appellant do pay the costs of London underground LTD and the two local authorities both in this court and in the court below. The amount of costs to be determined under section 11 of the access to Justice Act 1999 or by the Legal Services Commission; further orders as per draft minuted order.

(Order does not form part of the approved judgment)

COUNCIL DIRECTIVE

85/337/EEC

ON THE ASSESSMENT OF THE EFFECTS OF CERTAIN PUBLIC AND PRIVATE PROJECTS ON THE ENVIRONMENT

as amended

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.

2. For the purposes of this Directive:

'project' means:-

the execution of construction works...;

'developer' means:-

the applicant for authorization for a private project or the public authority which initiates a project;

'development consent' means:-

the decision of the competent authority or authorities which entitles the developer to proceed with the project.

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

2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, ...

3. ... . Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive.

...

Article 3

The environmental impact assessment shall identify, describe and assess in an appropriate manner, ..., the direct and indirect effects of a project on the following factors:

 human beings, fauna and flora;

 soil, water, air, climate and the landscape;

 material assets and the cultural heritage;

The interaction between the factors mentioned in the first, second and third indents.

Article 4

1. ...

2. ... For projects listed in Annex II the Member States shall determine...whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

...

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 III 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;

2. Member States shall take the necessary measures to ensure that, if the developer so requests before submitting an application for development consent, the competent authority shall give an opinion on the information to be supplied by the developer in accordance with paragraph 1.

...

Article 6

1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project ... 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 the 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.

ANNEX II

PROJECTS SUBJECT TO ARTICLE 4 (2)

...

10. Infrastructure projects

...

(c) Construction of railways ...

13. Any change or extension of projects listed in ... ANNEX II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment; ...

ANNEX IV

INFORMATION REFERRED TO IN ARTICLE 5 (1)

1. Description of the project...

2. An outline of the main alternatives studied by the developer and an indication of the main reasons for his choice...

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 interrelationship 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.