IN THE SUPREME COURT OF JUDICATURE FC3 98/5692/4
COURT OF APPEAL (CIVIL DIVISION)
ON RENEWAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST Royal Courts of Justice
Strand, London WC2
Friday, 8th May 1998
B e f o r e :
LORD JUSTICE NOURSE
LORD JUSTICE PILL and
LORD JUSTICE MUMMERY
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
R E G I N A
(1) THE SECRETARY OF STATE FOR THE ENVIRONMENT
TRANSPORT AND REGIONS
(2) PARCELFORCE Respondents
ex parte ANTHONY MARSON Applicant
Handed Down Judgment
Smith Bernal Reporting Limited
180 Fleet Street London EC4A 2HD
Tel: 0171 421 4040 Fax: 0171 831 8838
(Official Shorthand Writers to the Court)
MR R GORDON QC and MR G JONES (instructed by Mr R M Buxton, Environmental Lawyer, Cambridge) appeared on behalf of the Applicant.
MISS N LIEVEN (MR J MAURICI 8.5.98) (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent.
MR C WHYBROW QC (instructed by Messrs Clifford Chance, London WC1) and MR M REDMAN (Solicitor Advocate) appeared on behalf of the Second Respondent.
J U D G M E N T
(As Approved by the Court)
Friday, 8th May 1998
This is a renewed application for leave to apply for judicial review following refusal by Jowitt J on 23 March 1998. The judge had refused the application of Mr Anthony Marson ("the applicant") for leave to apply for an order of certiorari to quash a decision of the Secretary of State for the Environment, Transport and Regions ("the Secretary of State") dated 26 February 1998 not to require an environmental impact assessment under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the 1988 Regulations"). The proposed development is a proposal by Parcelforce to develop a 17 hectare site to the south-east of Coventry Airport for the construction of two buildings to be used for sorting and handling national and international parcels for onward transmission by air and road, vehicle parking areas and ancillary facilities.
The project involves a re-location of existing facilities housed on the other side of the airport. The site consists in part of land allocated as a business park on the development plan, in part of land within Coventry Airpark and in part of green belt land which lies within the boundaries of the Airport. There are few dwellings within 200 metres of the site.
The hearing of the renewed application was on 6 April 1998 and lasted over 4 hours. Expedition had been granted because, on the evening of that day, Warwick District Council ("the Council") was due to consider the planning application. Interim relief was to be sought if the application for leave had been granted. Submissions were also made by counsel on behalf of the Secretary of State and Parcelforce. A decision to refuse leave was announced at the end of the hearing.
As stated by counsel for the applicants in their written submissions, the case concerns Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effect of certain public and private projects on the environment. The central point is stated in those submissions to be whether, when the competent authority of a member state decides not to require an environmental assessment in relation to a particular project, the authority can refuse to give reasons for that decision. The applicant seeks a declaration that the Secretary of State's failure to give reasons for the decision was unlawful, in addition to an order of certiorari quashing the decision. No question arises as to the standing of the applicant, who lives about 1 mile from the Airport, to make the application or as to his right to rely on the terms of the Directive. The 1988 Regulations were intended to implement in part the 1985 Directive. Article 2(1) of the Directive provides:
"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."
Article 4(1) provides that, subject to Article 2(3) which allows for exemptions in exceptional cases, projects of the classes listed in Annex I to the Directive shall be made subject to an assessment. Those include, for example, crude oil refineries and integrated chemical installations. By virtue of Article 1, "development consent" means "the decision of the competent authority or authorities which entitles the developer to proceed with the project". The Council are a "competent authority".
Article 4(2) of the Directive provides that:
"Projects of the classes listed in Annex II (which include "industrial estate development projects") shall be made subject to an assessment in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.
To this end, Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10."
Articles 5 to 10 set out what is to be included in the assessment. Under Article 9, when a "decision" (agreed to be a decision to give consent under Article 2) has been taken, the competent authority shall inform the public concerned inter alia of "the reasons and considerations on which the decision is based where the Member States' legislation so provides". No such obligation, which is itself a limited obligation, is imposed upon a decision not to subject a project to an assessment under Article 4.
Following the language of the Directive, the 1988 Regulations set out, in Schedule 2, under the heading "Description of Development" and the sub-heading "10. Infrastructure projects" the words "(a) an industrial estate development project". Again following the language of the Directive, Regulation 2 provides that "Schedule 2 application" means, "subject to paragraph (2), an application for planning permission for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location".
Paragraph (2) provides:
"Where the Secretary of State gives a direction which includes a statement that in his opinion proposed development would be likely, or would not be likely, to have significant effects on the environment by virtue of factors such as its nature, size or location, or includes such a statement in a notification under regulation 10(1), that statement shall determine whether an application for planning permission for that development is, or is not, a Schedule 2 application by reason of the effects the development would be likely to have; and references in these Regulations to a Schedule 2 application shall be interpreted accordingly."
Article 14(2) of the General Development Procedure Order 1995 empowers the Secretary of State to give directions "as to whether particular proposed development is or is not development in respect of which those Regulations [the 1998 Regulations] require the consideration of environmental information (as defined in those Regulations) before planning permission can be granted". It is common ground that the Secretary of State has power to make such a direction in the present case. The Secretary of State has also issued a Circular (15/88) which gives advice on the implementation of the 1988 Regulations.
Parcelforce made their application for planning permission to the Council on 25 April 1996. Acting for local residents and parish councils, the applicant's solicitor, Mr Richard Buxton, sought a direction from the Secretary of State that environmental assessment was required and also that the Secretary of State should consider exercising his power under section 77 of the Town and Country Planning Act 1990 ("the 1990 Act") to call in the application for planning permission for determination by him. The Secretary of State directed the Council not to grant planning permission without special authorisation so that he could have a further period in which to consider the proposal and the request.
By letter of 18 December 1997 to Parcelforce, the Secretary of State (by the Government Office for the West Midlands) referred to the representations he had received from Mr Buxton, Parcelforce and the Council and invited further information from Parcelforce as to the effect of the proposals on air flights. By letter of 26 February 1998, following receipt of the information, the Secretary of State stated that the development fell within "the description at 10(a) of Schedule 2 to the 1988 Regulations (an industrial estate development project) but in the opinion of the Secretary of State it would not be likely to have significant effects on the environment by virtue of factors such as its nature, size and location The Secretary of State hereby directs that the proposed development described in the [Parcelforce] application and the documents submitted with it is not development in respect of which the 1988 Regulations require the consideration of environmental information before planning permission can be granted". By letter of the same date to Mr Buxton, the Secretary of State stated that he had decided not to call in the planning application for his determination. The Secretary of State declined in his letter of 6 March 1998 to give reasons in addition to the above statement of his decision on the environmental assessment.
From the decision letter it is clear that the Secretary of State's decision that no assessment of the kind contemplated in the Directive and the 1988 Regulations was required was by reason of his opinion that the development proposed "would not be likely to have significant effect on the environment by virtue of factors such as its nature, size and location". I say at once that the statement gives a reason or reasons for the decision because the words of the Regulation, which are recited, set out the basic criteria for the decision.
The Secretary of State, under Regulation 10 (application referred to the Secretary of State without an environmental statement) and Regulation 11 (appeal to the Secretary of State without an environmental statement) is also empowered to direct that the submission of an environmental statement is required when the situations contemplated in those Regulations arise. Upon a direction under Regulation 11 that there should be such a statement, the Secretary of State is required to send to the appellant, local planning authority and the Inspector and to any other person he considers desirable "a written statement giving his full reasons for his conclusions clearly and precisely" (Regulation 11(4)). Other Regulations include the same requirement when an environmental assessment is required. This procedure has the practical advantage of alerting those concerned to what is expected of them in relation to the statement to be prepared. The Regulations (like the Directive) do not require reasons when a direction is refused. Nor do regulations require the Secretary of State to give reasons for declining to call in an application for planning permission for his determination and it has not been suggested that reasons for the decision of the Secretary of State not to call in are required.
The applicant's case is based essentially upon a requirement claimed to exist by virtue of Community law as expressed in the Council Directive and decisions of the European Court of Justice ("ECJ") to give reasons for declining to require an environmental assessment. The submission of Mr Gordon QC, on behalf of the applicant, is that the applicant has under Community law an individual right in certain cases to require that a planning application shall not be considered without the benefit of an environmental impact assessment. The assessment is a pre-requisite of a planning permission. Community law requires the English courts to protect the right. The right cannot be protected unless reasons are given for a refusal to direct an environmental assessment. In the absence of reasons, no proper decision can be taken as to whether to apply to the Courts. Because there can be no effective recourse to the Courts, the applicant is deprived of his right.
Mr Gordon relies upon the opinion expressed in the European Court of Justice ("ECJ") by Advocate General Elmer in the Dutch Dykes case (Case C-72/95  ELR 265. At paragraph 52, page 281, the Advocate General stated:
"In those circumstances I think that Article 2(1) of the Directive contains the basic criteria for deciding when a project must be subject to an environmental impact assessment and thus contains an independent obligation for the Member States. That obligation implies that the Member States, in assessing whether a project can significantly affect the environment, must make a specific estimate as to whether the project is likely to have significant effects on the environment and where appropriate carry out an environmental impact assessment."
The "specific estimate", Mr Gordon submits, requires a reasoned decision. In Dutch Dykes, the Court acknowledged (paragraph 59) that Member States had a discretion under Articles 2(1) and 4(2) but added that it "does not preclude judicial review of the question whether the national authority exceeded their discretion".
Mr Gordon also relies upon an opinion expressed by Advocate General Fennelly in Sodemare SA and Others v Regione Lombardia (Case C-70/95). At paragraph 17, the Advocate General stated:
"The obligation to give reasons for national decisions affecting the exercise of Community-law rights does not arise from any extension of Article 190 of the Treaty, but from the general principle of Community law, flowing from the constitutional traditions of the Member States, that judicial remedies should be available to individuals in such cases."
At paragraph 19 of its judgment, the ECJ stated:
"The obligation to state reasons laid down in Article 190 of the Treaty concerns only acts of the institutions. It is true that Community law imposes the obligation to state reasons for national decisions affecting the exercise of a fundamental right conferred on individuals by the Treaty (see, in particular, Case 222/86 UNECTEF v Heylens and Others  ECR 4097, paragraphs 14 to 17). However, in view of its purpose, such an obligation concerns only individual decisions adversely affecting individuals against which the latter must have some remedy of a judicial nature, and not national measures of general scope."
It was national rules of general scope which were in issue in Sodemare.
In Heylens, the ECJ concluded (paragraph 14) that "free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community". The Court stated:
"15. Effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general that the court to which the matter is referred may require the competent authority to notify its reasons. But where, as in this case, it is more particularly a question of securing the effective protection of a fundamental right conferred by the Treaty on Community workers, the latter must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in their applying to the courts. Consequently, in such circumstances the competent national authority is under a duty to inform them of the reasons on which its refusal is based, either in the decision itself or in a subsequent communication made at their request.
16. In view of their aims those requirements of Community law, that is to say, the existence of a judicial remedy and the duty to state reasons, are however limited only to final decisions refusing to recognise equivalence and do not extend to opinions and other measures occurring in the preparation and investigation stage."
Reference is also made by Mr Gordon to Article 6 of the European Convention of Human Rights which provides that in the determination of his civil rights "everyone is entitled to have a fair and public hearing" and Article 13 which provides that everyone shall have an effective remedy before a national authority for a violation of his rights and freedoms. Mr Gordon relies on the principle stated by Leggatt LJ in R v Civil Service Appeal Board ex p Cunningham  4 All ER 310 at 323J, where a dismissed employee claimed compensation from the Board: "An applicant is entitled to know the case he has to meet, so should he be entitled to know the reasons for an award of compensation so that in the event of error he may be equipped to apply to the court for judicial review.".
Mr Gordon submits that the right to live in a properly protected environment is a fundamental right, in the Heylens sense, under Community law. Even if it is not, the right to challenge the Secretary of State's decision in this context is a right conferred by Community law and it cannot be exercised unless reasons are given. In the absence of reasons, the applicant cannot know whether the discretion has been lawfully exercised.
Mr Gordon accepts that the Secretary of State has to make a judgment as to whether an environmental statement is required and in present circumstances is left with a discretion when doing so. Article 4 gives Member States a discretion and Regulation 2 confers a discretion on the Secretary of State. When asked what constituted a "specific estimate", Mr Gordon said that it meant a "concrete assessment of the project". In my view it means no more than a judgment based on the facts of the particular case and does not incorporate the requirement claimed by the applicant to exist. I reject, without for present purposes needing to elaborate, the submission that the contents of an amended Council Directive (97/11/EC), which comes into force in March 1999, are material and also the submission that the contents of the UK Government's consultation paper (19 December 1997) upon the implementation of that Directive are material.
I agree with Jowitt J that it is not arguable that the decision of the Secretary of State should be quashed for lack of reasons. I reach that conclusion by reference to the legislative framework and also by applying general standards of fairness to the circumstances set out.
1) No general duty has been established under Community law or national law to give reasons for all decisions by competent authorities of Member States.
2) Neither the Directive nor the 1988 Regulations expressly require reasons to be given for a decision not to direct an environmental impact assessment.
3) The applicant's right is not a right to an environmental impact assessment but to a decision from the Secretary of State as to whether such an assessment is required.
4) The decision requires an exercise of judgment by the Secretary of State and he is left with a discretion in its exercise. The requirement for a decision is only one part of the procedures provided for planning control and the protection of the environment.
5) Whether or not there is an environmental impact assessment, the local planning authority, in determining applications for planning permission, must have regard to "material considerations" (sections 54A and 70 of the 1990 Act) which will include environmental considerations. The applicant had the opportunity to make representations to the local planning authority and the authority were supplied with information upon environmental considerations, albeit not in the form of an assessment in the form specified in the Directive and Regulations.
6) The right concerned in the circumstances is removed from the relevant substantive decision, that is the decision whether or not to grant planning permission.
7) The right conferred is very far removed from the fundamental right considered by the ECJ in Heylens.
8) Reasons for the decision were given, albeit in summary form: the development proposed "would not be likely to have significant effect on the environment by virtue of factors such as its nature, size or location".
9) Community law and national law permit reference to practical considerations and it is difficult to identify a more elaborate form of reasoning which could sensibly prove the negative averment that an environmental assessment is not required. Mr Gordon did not suggest ways in which the Secretary of State's reasons could usefully be elaborated.
10) Further gratuitous comment of a negative kind by the Secretary of State could prejudice the local authority decision maker against the environmental interest which it is the object of the applicant to protect.
11) There is no bar to a challenge by way of judicial review and considerable information is available to an applicant who might seek to challenge the decision as irrational.
For those reasons I do not consider that there is an arguable case for the relief sought. It follows that I do not consider a reference to the European Court of Justice under Article 177 of the Treaty to be appropriate. Questions of interim relief do not arise. Mr Gordon has pursued the claim for disclosure of documents only briefly. The written submission claims that there must exist "some sort of determination report" which led to the decision that there should not be an environmental assessment. I do not accept that, in the present context, the Secretary of State should be required to disclose departmental documents demonstrating how the relevant decision was reached. I can find no breach of the Directive or the Regulations in the failure to do so.
At the hearing the Court refused the renewed application for leave to apply for judicial review and it is for those reasons that, for myself, I came to the conclusion it should.
I also agree.
Order: renewed application for leave to apply for judicial review refused (as announced on 6.4.98); applicant to pay the first respondent's costs; if counsel is entitled to seek leave to appeal to the House of Lords, such leave refused. [Not part of approved judgment]