Update | Environment: failed Environment Impact Assessments

The impact of EU law on domestic environmental law cannot be underestimated. The Industrial Emissions (formerly IPPC), Habitats and Environmental Impact Assessment (EIA) directives, among others, have had a profound effect in making environmental law not just about minimum standards to protect human health or measures to conserve a very few animal species. Although many, including the current government, may argue that the law has now gone ‘too far’ in imposing standards that stifle economic growth, most would agree that an effective legal regime is necessary if our environment is to continue to be a safe, pleasant and productive place.

The aspect of EU law that gives environmental law ‘teeth’ is that it must be implemented in a way that is purposive and effective. If a member state waters down a directive in domestic transposition, a court can declare it to have been wrongly implemented and substitute its own understanding of the original, e.g. R (Baker) v BANES [2010] 1 P&CR 4. This is because domestic law must conform to EU law, rather than the other way round.

The precise mechanisms by which a directive is implemented are subject to the member state’s domestic legal rules but this must not render the EU legislation ineffectual. But what if domestic law allows a situation to arise that contradicts the purpose of a directive? In (Hood) v Redcar & Cleveland BC [2013] EWCA Civ 86, this question was considered in the context of the EIA directive. Although only an appeal hearing for an application for judicial review, the judgment draws out an unresolved tension between domestic and EU law.

The EIA directive requires a developer who wants to obtain development consent for a plan or project which is likely to ?have significant environmental effects ?(“EIA development”) to produce an environmental statement before permission is granted. That statement is then subject ?to the scrutiny of the planning authority and the public. The planning authority likewise is required to screen in advance ?all plans or projects which are likely to be EIA development.

The EIA regulations 2011 set out thresholds for what may be EIA development and therefore screened as to whether it is likely to have significant effects. But quite often happens that a project escapes the screening process and permission is nonetheless granted. Is there a duty on the planning authority to remedy this failure? If so, how can that be done without running foul of domestic law which grants immunity from most forms of remedial action by the planning authority if a certain amount of time elapses since ?the grant.

Nullify unlawful consequences

In Hood, the claim centred on the grant of under section 192 Town & Country Planning Act 1990 a certificate of lawful proposed lawful use or development for an abattoir in Boosbeck high street, a small village in the north-east. Redcar & Cleveland Borough Council granted the certificate, on the basis that an abattoir had operated there for many decades, although its previous owners had ceased operations in 2007 and the site had since been marketed as an opportunity for housing development. The local residents were for the main part, unhappy about the abattoir opening again as the previous operation had been disliked for producing noise, odours and vermin. Locals viewed the operation as inappropriate for a village high street less than 100m from their homes. The site however benefited from a grant of planning permission in 1990 for use as an abattoir, with a limited number of conditions.

Although local residents lobbied vigorously against the grant of the certificate, the council granted it as section 192 allows virtually no discretion on the part of the planning authority if a prima facie case for the legality of the use is made out. Local residents brought a claim in judicial review of the grant, on the basis that the development had not been screened for EIA and no EIA had been carried out when the grant of planning permission was made in 1990, despite the fact this post-dated the first EIA directive, which was codified in 1988. The claim was argued on the basis that if the 1990 planning permission was granted in breach of the EIA regulations and directive it was too late to set aside the 1990 consent but the council should not have issued a section 192 certificate in 2011, because under EU law public authorities must ensure that the obligations arising under the regulations and directive are put into effect.

The appellant relied on the judgment of the ECJ in case C-201/02 Wells v Secretary of State for Transport, Local Government and the Regions, in which the court said that member states are required to nullify the unlawful consequences of a breach of EU law. Therefore it is for the competent authorities to take within the sphere of their competence all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an EIA. Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the member states, the revocation or suspension of a consent already granted, in order to carry out an assessment of environmental effects. As the court said, it was for the national court to determine whether it was possible under domestic law for a consent already granted to be revoked or suspended for that purpose or, alternatively, for compensation to be claimed for the harm suffered.

Richards LJ, hearing the application for permission, rejected the claim on the basis that on the evidence in front of the council, they could not have done anything other than grant the certificate as the proposed use of the development clearly was lawful. The use as an abattoir was established and had the benefit of a grant of planning permission in 1990; the validity of that permission could not now be questioned on any basis including the failure to subject it to EIA screening. The requirements of the EIA directive did not kick in because a grant of the certificate is not a ‘development consent’ but rather a declaration of lawfulness that the developer could ‘draw comfort from’ but did not alter the status of the site, since it was open to the developer to carry out the operations without obtaining a certificate.

However, the judge left open the possibility of future arguments based on the judgment given in Wells, distinguishing, for example, the facts of this case with one where a council was asked to revoke or suspend a permission granted without EIA screening. He said, “I do not suggest that EU law in this general area is in all respects acte clair; there are arguments still to be made, for example, about the precise effect of Wells.”

Leaving it to the public

Planning authorities and developers will be reassured to know that they do not now face a stream of challenges to certificates granted to projects which benefit from unscreened planning permissions. But the problem which the Hood case illustrates is that an abattoir, which most would agree is not suitable for a high street in a dense residential area, is operating without sufficient consideration of its environmental effects or how those effects can be mitigated. EU law is very clear that the public affected by a development have a right to know what those environmental effects are likely to be and to comment on them before planning permission is granted. The certificate of lawful development processes in the domestic system and the doctrine of immunity from enforcement through the passage of time, thwarts the purpose of these EU laws.

That said, the question remains as to what would happen if a claim arose in the circumstances hinted at by Richards LJ, namely a planning authority refuses to revoke or suspend a permission which should have been subject to the EIA screening process but was granted permission without it. The doctrine that the passage of time regularises what would otherwise be breaches of planning law is deeply ingrained in the domestic system as it often presents as the pragmatic, sensible approach. It is argued that it is against both private and public interests to allow for rights granted many years ago to be subject to fresh scrutiny and uncertainty. It can also be said that as the purpose of the EIA directive is precautionary (see section 43 of Loader v Secretary of State [2013] Env LR 7 614), if environmental effects arise after the fact which are causing problems, then it is for environmental health departments and the law of nuisance to address the issue.

Leaving it up to a nuisance claim however, means that a member of the public affected by the unmitigated significant environmental effects must sort out the problem themselves, often at great expense and risk, when the planning authority whose lapse it is that has allowed the problem to happen, escapes without penalty. This clearly does not satisfy the principles set out in Wells.

Some may also argue that as Wells explains the possibility of revoking or suspending a planning permission is expressly subject to the limits laid down by the principle of procedural autonomy of the member state concerned, the time limits on remedial action in UK domestic law are justified as part of that procedural autonomy. But if ‘procedural autonomy’ serves to subvert the very purpose of the EU rule then surely that is going beyond what was intended by the ECJ.

Planning authorities strongly resist revoking or suspending permissions because of the potential liability for damages to the developer affected. Any court ruling on the matter would be mindful of this and presumably reluctant to land a council, particularly in these days of austerity, with such a burden (see R (HSE) v Wolverhampton CC [2012] UKSC 33).

The proper application of the judgment in Wells, when considered by a domestic court or on a reference to the ECJ, will have to face squarely the conundrum set out at the start, namely how to reconcile a point of EU principle with the practical consequences of its implementation in a way that does not deprive the principle of effectiveness but also does not create a situation which unnecessarily penalises the parties involved. It will be for the benefit of all if protection ?of the environment is put at the heart of ?the solution.