Posts Tagged Directive 2011/92
Kenyon: Court of Appeal emphasises again the discipline of the precautionary principle (here: in EIA proceedings).
Update 24 March 2020 thank you Gordon Nardell QC for pointing me to R (Merricks) v Secretary of State for Trade and Industry  EWHC 2698 (Admin), most probably the first case to consider the standard of review when an administrative authority applies the precautionary principle.
A quick note on Kenyon v Secretary of State for Housing Communities & Local Government et al  EWCA Civ 302 in which Coulson J checks planning consent ia against the requirements of the EU Environmental Impact Assessment- EIA Directive 2011/92. Of particular interest is his application of the Wednesbury judicial review test.
At 12: ‘A decision as to whether a proposed development is or is not likely to have significant effects on the environment can only be struck down on Wednesbury grounds’. ‘Wednesbury unreasonableness‘ is akin to CJEU standard of judicial review. Diplock J formulate it later as an administrative decision being annulled only if it was ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ The grounds in Wednesbury are very akin to the CJEU grounds: annulment will follow only if (well summarised by Wiki):
- in making the decision, the defendant took into account factors that ought not to have been taken into account, or
- the defendant failed to take into account factors that ought to have been taken into account, or
- the decision was so unreasonable that no reasonable authority would ever consider imposing it.
Applied at issue at 63 ff to the precautionary principle, applicant’s argument that ‘inevitable air pollution caused by the development’ must be taken into account, fails. at 67: ‘In circumstances where there was no doubt in the mind of the relevant decision-maker, there is no room for the precautionary principle to operate.’ (Clearly and in applying all Wednesbury principles, that absence of doubt must have followed from the right information having been taken into account).
EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.
Supreme Court goes Jules Verne and crosses the HS2 Bridge at high speed. Aarhus, SEA, EIA and supremacy of EU law all fail to make an impact.
In Chapter XXVIII of Jules Verne’s Around the world in Eighty Days, the train driver, egged on by enthusiastic US passengers and despite objections by Passepartout, reverses his train to cross a wobbly bridge (successfully) at high speed. With all passengers on board. It is a favourite chapter of mine and one which comes in handily in risk management classes.
In HS2 Action Alliance v Secretary of State for Transport, the United Kingdom Supreme Court took inspiration from Chapter XXVIII in dismissing all arguments based on the Aarhus Convention, the EIA Directive, the SEA Directive, and supremacy of EU law. These arguments were raised against the UK Government’s ‘Command paper’, “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” . The command papers sets in motion the reality of the development of the HSs high speed rail link between the South of England, the north and Scotland.
Lord Carnwath summarised the legal issues as follows (at 15):
i) SEA whether the DNS in the circumstances of HS2 is a “plan or programme” which “sets the framework for development consent” and was “required by administrative provisions” within the meaning of articles 2-3 of Directive 2001/42/EC (“the SEA Directive”).
ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences.
iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU (“the EIA Directive”), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip.
iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed;
v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court.
David Hart QC superbly summarises the Court’s findings and much of its reasoning over at the Human Rights blog and I am happy to refer my readers to him to get, well, up to speed on the judgment. I should simply like to point out that the Court’s boldness lies not so much in the merits of its decision, rather in the more or less belligerent wording and indeed telling off aimed at the Court of Justice.
With respect to Strategic Environmental Assessment – SEA [aimed at ensuring that environmental impacts are identified upstream, by ensuring that programs and plans which will lead to EIA-bound projects, are vetted themselves], a command paper formally does not set anything in stone about the ensuing (or not) development of the project which it will lead to. Much can still change and Members of Parliament have every right and prerogative to have the project amended or indeed scrapped altogether. However, clearly this is a project the realisation of which the government will want to ensure. It is in my view not merely ‘policy’, but a proper plan. Whence in reality this is exactly the kind of program which the SEA Directive had in mind when pressing for impact assessment upstream. Like the train carrying Passepartout et al, the adoption of this Command Paper has set in motion developments which will be all but impossible to stop. With one step following logically from the other, the intentions addressed in the Command Paper display a high degree therefore of fait accompli. The intent and purpose of the SEA Directive in my view does require its application in casu. I appreciate however that intent and purpose as interpretative tool is met lukewarmly by the Supreme Court. (I grant moreover that the Supreme Court does justifiably criticise some of the ECJ’s case-law on the EIA Directive, where very clear provisions nevertheless were altered in their meaning by reference to intent and purpose. The ‘claris’ in ‘in claris non fit interpretatio’ clearly lies in the eye of the beholder).
Of particular EU institutional interest is the Supreme Court’s reference to the Bill of Rights (at 206), Parliamentary Sovereignty, and the 2013 Bundesverfassungsgericht’s judgment on the Counter-Terrorism Database Act. (Translated by the SC in relevant part as as part of a co-operative relationship, a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order). The SC is right in pointing out the difficulty under the doctrine of separation of powers, of courts second-guessing not the way in which data were put before parliament, but rather how members of that parliament subsequently interpret and apply those data. More generally, though, in suggesting, when criticising the ECJ judgments on that role of the courts, to restrain the ECJ in its interpretative space, the Supreme Court inevitably joins the queue of national supreme courts which are jittery about the positioning of the ECJ (and the ECtHR) on their turf.
This judgment is of very high relevance both for EIA and SEA, and for EU Institutional law. No doubt much more to be chewed on.
Aarhus and costs recovery. The impact of the EIA Directive and the Convention post consent in Alyson Austin
Reminiscent of an earlier posting on costs, the High Court recently had to consider the impact of the EIA Directive on cost orders. Mrs Austin lives close to an opencast mining and reclamation site in Wales. She complains of noise from heavy machinery and dust, affecting her home and preventing her family from sleeping. Planning consent had been granted in 2005. Mrs Austin’s current action is based on private nuisance proceedings, based inter alia on the allegation that some of the conditions attached to the consent have not been complied with. The claim therefore is related to post-EIA compliance and the order sought by Mrs Austin is one to limit her costs.
Milwyn Jarman QC held – upon assist by James Pereira and Jack Connah) – that direct applicability of the Aarhus Convention in the UK is limited to those parts which have been incorporated in the EU’s EIA Directive [‘otherwise, it remains a matter to be taken into account (…) in resolving ambiguities or in exercising discretions’ – a narrow view perhaps, albeit supported by UK precedent, on the impact of the Convention in the UK’s legal order] and that the Directive itself, as far as its impact on costs is concerned, sees upon judicial review proceedings in the process of EIA-based consent only, not an action in private nuisance post such consent.
Leave to appeal was granted and shall be heard end of June. The Aarhus Committee itself is also considering the issue and will proceed with findings in 2014.
This issue has exercised various courts and officials in the UK for some time. The 2014 developments are eagerly awaited.
In Burridge v Breckland, the Court of Appeal (permission to appeal with the Supreme Court is under consideration) had to consider the all too familiar issue of ‘salami’ projects: developments which singularly do not meet the thresholds to require an EIA but which do when joined together. Splitting needs to be considered carefully, for it may disguise an attempt to circumvent EIA requirements. On the continent, it is referred to as ‘saucisonner’.
In the case at issue, planning permissions was granted, subject to conditions, to Greenshoots Energy Ltd for a biomass renewable energy plant, and for a combined heat and power (‘CHP’) plant on nearby land. The CHP plant would be fuelled by biogas produced by the renewable energy plant. In an earlier (later amended) stage of the application, the two plants were effectively joined: the CHP plant was moved ‘to have the environmental advantage of moving a part of the installation farther away from the village [ ].’ An underground gas pipeline is to carry the fuel between the two sites.
Appellant requested that the permits be quashed, on the basis that no EIA, indeed not even screening was carried out vis-a-vis the amended scheme.
The ECJ has unequivocally rejected inter alia in Ecologistas en Acción (referred to by the Court of Appeal), the artificial splitting of projects to circumvent EIA requirements:
‘as the Court has already noted with regard to Directive 85/337, the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland  ECR I‑5901, paragraph 76, and Abraham and Others, paragraph 27). [Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid,  ECR I-6097, paragraph 44]
In the case at issue, the splitting may not have been artificial, but it was certainly a reality. Hence at the least a renewed screening ought to have been carried out. A consequential further issue related to the impact of the earlier screening, which had been carried out vis-a-vis the unamended, initial application, and which had decided against the need for an EIA. Was this to have any impact on the Court of Appeal’s decision? Here, (the majority of) the CA thankfully adopted the only sensible approach: separation of powers. Even if it might be unlikely that a different screening opinion were to be taken vis-a-vis the amended application, that is for the local authority to consider: not the court.
The two decisions were quashed.
Should the Supreme Court consider the issue, I shall of course revisit in due course.