Berkeley v. Secretary of State For The Environment and Others

The Secretary of State's grant of planning permission was quashed because he failed to consider whether the proposed redevelopment was a Schedule 2 application requiring an environmental impact assessment (EIA) under Council Directive 85/337/E.E.C. as transposed by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. The court held that regulation 4(2) (and regulation 10(1)) required consideration of whether an EIA was necessary and that that requirement could not be retrospectively excused merely because the outcome would have been the same. Only if there had been substantial compliance with the Directive and Regulations could the defect be cured; on the facts the procedures required by the Directive (in particular the developer's environmental statement and the public participation it is designed to secure) were not substantially complied with and the permission and listed building consent were quashed.

This is an appeal from decisions below in proceedings under section 288 of the Town and Country Planning Act 1990 seeking to quash planning permission and listed building consent for redevelopment of the Fulham Football Club site at Craven Cottage. The appellant, a local resident, argued that the Secretary of State had granted permission without considering whether an environmental impact assessment (EIA) was required under Council Directive 85/337/E.E.C. and the implementing Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.

The factual background was that the development had been the subject of extensive consideration and consultation over many years, including public inquiries and numerous reports and representations (notably from the London Ecology Unit and the National Rivers Authority). The application before the Secretary of State was not accompanied by a single environmental statement prepared by the developer in the form specified by Schedule 3 to the Regulations. The Secretary of State called in the application for inquiry but did not require an environmental statement under regulation 10.

The key legal issues framed were:

• Whether the Secretary of State was under an obligation to consider whether the application was a Schedule 2 application likely to have significant environmental effects (and thus to require an EIA) under article 4 of the Directive and regulation 4(2) and regulation 10 of the Regulations;
• Whether, if that obligation was breached, the court had a discretion under section 288(5)(b) to refuse to quash the permission on the ground that there had been substantial compliance with the Directive or that an EIA would have made no difference to the outcome;
• Whether on the facts there had been substantial compliance with the Directive such as would justify leaving the permission in place.

The House of Lords (giving leading reasons in particular in the speech of Lord Hoffmann, with which other members agreed) accepted that the Directive confers directly enforceable rights and that member state authorities must take measures to ensure that applications likely to have significant effects are considered for EIA. The court concluded that the domestic Regulations must be read and applied so as to require the Secretary of State to consider whether an EIA was necessary. A retrospective judicial conclusion that an EIA would not have changed the outcome was not a lawful basis for validating a decision taken in breach of the Directive and Regulations. The only possible basis for upholding such a decision was that there had been substantial compliance with the Directive. Applying those principles, the House of Lords held that the composite paperwork and inquiry documents in this case did not amount to the environmental statement envisaged by the Directive and Regulations, and that there was not substantial compliance. The appeal was therefore allowed and the Secretary of State's grant quashed.

Appeal allowed. The Secretary of State's grant of planning permission and listed building consent was ultra vires because he failed to consider whether the development required an environmental impact assessment under Council Directive 85/337/E.E.C. and the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (in particular regulation 4(2) and regulation 10). A court may not validate such a decision simply by concluding that the outcome would have been the same; only substantial compliance with the Directive could suffice, and on the facts there was no substantial compliance because no proper environmental statement had been provided and the public participation required by the Directive had not been secured. The permissions were quashed.

The claim under section 288 of the Town and Country Planning Act 1990 was heard at first instance by Tucker J., who dismissed the application. The Court of Appeal (Nourse, Pill and Thorpe L.JJ.) [1998] 3 P.L.R. 39 upheld that decision. The matter then proceeded to the House of Lords: Berkeley v. Secretary of State for the Environment and Others [2000] UKHL 36.