Berkeley – Fulham Football Club
Berkeley v Secretary of State For The Environment and Others
Berkeley was a major step forward for the implementation of the EIA directive in the UK. The House of Lords held that the EU law requirements for environmental impact assessment (EIA) must be followed. They could not be dispensed with retrospectively on the basis that material information had in fact been available. This case possibly more than any other “put EIA on the map”.
Fulham Football Club wanted to redevelop its ground which abuts the River Thames. Its listed frontage had to be incorporated in the design, but otherwise the club planned a wholescale redesign (including incorporation of flats). Lady Berkeley objected, primarily concerned about the effects on the Thames. The matter was “called in” and, following a public inquiry and Inspector’s report, the Secretary of State granted planning permission. There has been many objections and much written material. So, the public were able to make representations. However, they had not been presented in an Environmental Statement following formal EIA, and this legal error prejudiced members of the public like Lady Berkeley, who could not be expected to trawl through boxes of material. The lack of EIA was contrary to rights guaranteed by EU law.
The High Court and Court of Appeal took the approach that even if this were so it could be excused because the information was in fact available to be found and the decision was likely to be the same. The House of Lords unanimously rejected that, upholding the rights that should have been available has the requirements of the EIA Directive and implementing Regulations been followed. There was virtually no discretion not to do so.
The case was also important at the Court of Appeal stage in a costs context. Costs had been awarded in the High Court against Lady Berkeley in favour of both the Secretary of State and the Club. The Court of Appeal reversed the latter award, following its approach set out in Bolton v. Secretary of State [1995] HL, emphasising that it was necessary to have a separate legal interest in a case to justify such an award. Merely being well informed about the matter and having an obvious practical interest was not good enough.
- House of Lords judgment
- Court of Appeal judgment
- Court of Appeal judgment on costs
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Commentary
Berkeley was something of a breakthrough in EIA law. The House of Lords recognised that EU law guaranteed certain rights which were not to be dispensed with by the exercise of discretion, so characteristic of domestic courts. However ever since the courts appear to have fought against that approach, they do not like traditional discretion being interfered with. The CJEU itself gave some comfort to that approach in ____ which has enabled some domestic dilution as considered in cases such as Walton v Scottish Ministers [2012] UKSC 44 and R (Champion) v North Norfolk DC [2015] UKSC 52. There is now a statutory basis for discretion, the so called “highly likely” test, for Courts considering whether to grant permission or on substantive relief, and (as at 2022) it is an open question whether that applies in cases subject to principles government by extant EU law. Observations in R (Plan B Earth) v SS Transport [2020] EWCA Civ 214 suggest that a strict test will continue to apply.
On costs, the Bolton rules as emphasised by the Court of Appeal in Berkeley continue to apply, although despite best efforts otherwise (see CPRE Kent v SS CLG [2019] EWCA (Civ) 1230 then in Supreme Court at [2021] UKSC 36) they do not as such apply at the permission stage in judicial review and statutory appeal cases (though the Court has to be mindful of proportionality requirements including duplication).