Berkeley v Secretary of State for the Environment

For an Annex II development which may have significant environmental effects, the competent authority must consider before granting consent whether an environmental impact assessment is required. The assessment is a procedural right, not merely a means of supplying information to the decision-maker. It requires an accessible environmental statement from the developer and a proper opportunity for public participation.

A court cannot excuse the omission because the same decision would probably have been reached or because relevant information appeared elsewhere. An alternative process may constitute substantial compliance only if it is, in substance, the assessment required by Council Directive 85/337/EEC. A disparate collection of documents produced at different stages by different parties does not suffice.

Berkeley v Secretary of State for the Environment concerned planning permission and listed building consent for redevelopment of Fulham Football Club's ground at Craven Cottage. No environmental statement accompanied the application, and neither the local planning authority nor the Secretary of State considered whether the development required an environmental impact assessment under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

Tucker J dismissed the resident's application under section 288 of the Town and Country Planning Act 1990. The Court of Appeal upheld that result in [1998] 3 P.L.R. 39, reasoning that an assessment would not have affected the procedure or outcome. Before the House, it was accepted that the failure to consider whether an assessment was required made the permission unlawful and could not be excused merely because the outcome would have been unchanged. The remaining issue was whether the procedures actually followed amounted to substantial compliance with the Directive and Regulations.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Bingham agreed fully and gave additional reasons. Lord Hope, Lord Hutton and Lord Millett agreed with both speeches. The planning permission and listed building consent were quashed.

2. Per Lord Hoffmann, article 4.2 of Council Directive 85/337/EEC required the competent authority to consider whether an Annex II project was likely to have significant environmental effects. Regulation 4(2) of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 had to be interpreted consistently with that obligation. Because the development was arguably an urban development project and the evidence disclosed conflicting views about its effects on the Thames, affected persons had an enforceable right to have the need for an assessment considered before consent was granted.

3. Per Lord Hoffmann, the right conferred by the Directive was not confined to obtaining a substantively well-informed decision. The prescribed procedure was itself essential. The developer had to provide the environmental information in an accessible statement, including a non-technical summary, and the public had to be allowed to examine and comment upon it. The court could not retrospectively dispense with that procedure because the decision-maker possessed relevant information or because the same outcome would have followed.

4. Section 288(5)(b) of the Town and Country Planning Act 1990 conferred a discretion to quash, but Lord Hoffmann considered that European law confined it within the narrowest bounds. Lord Bingham similarly regarded quashing as the proper response unless the violation was truly negligible and the prescribed procedure had been followed in all essentials. An unlawful permission could not be preserved merely through a judicial assessment that no prejudice or different outcome had arisen.

5. Per Lord Hoffmann, Commission of the European Communities v Federal Republic of Germany Case C-431/92 established that an environmental impact assessment conducted under another name could suffice, but only if it was substantively an assessment meeting all the Directive's requirements. The materials relied upon here were dispersed among statements of case, an officers' report, background correspondence and proofs of evidence. They were not a single, accessible compilation produced by the developer at the start of the application process.

6. Moreover, the Directive had been transposed into domestic legislation. A court should not ordinarily validate non-compliance with that legislation by reasoning that a differently framed method of transposition might also have satisfied the Directive. The procedures followed therefore did not amount to substantial compliance.

1. House of Lords: Allowed the appeal unanimously, reversed the Court of Appeal's disposition and quashed the planning permission and listed building consent.

2. Court of Appeal: In Berkeley v Secretary of State for the Environment [1998] 3 P.L.R. 39, upheld Tucker J's dismissal. It rejected his conclusion that no assessment could have been required but held that the permission should stand because the omission caused no prejudice and would not have affected the outcome.

3. High Court: Tucker J dismissed the section 288 application. He held that no environmental impact assessment was required and alternatively would have refused to quash because its absence could not have affected the inquiry's outcome.