Berkeley v Secretary Of State For Environment, Transport & Regions & Ors

For Annex II projects, a member state may use pre-set thresholds or criteria to identify development requiring environmental impact assessment. It need not require an individual assessment of every project. The threshold system is lawful only if, in setting it, the state has taken account of the relevant selection criteria and ensured that projects excluded as a class are not likely to have significant environmental effects.

A criterion expressed by size is not invalid merely because it does not itself recite nature or location. Under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, an inspector need refer a planning appeal for screening only where the application may be EIA development under the stated conditions. A merely plausible possibility of a discretionary direction does not suffice.

The appellant challenged planning permissions granted on appeal for two small residential developments beside the Thames at Mortlake. No environmental impact assessment had been carried out. The developments were urban development projects, but the sites did not exceed the 0.5-hectare threshold in Schedule 2, were not in a defined sensitive area, and were not the subject of a screening direction.

Mr Duncan Ouseley QC, sitting as a Deputy High Court Judge, dismissed the challenge. He held that the applications were not EIA applications and that the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 complied with the amended environmental impact assessment Directive. The appellant contended that the inspector should have referred the matter for screening, or alternatively that the Regulations had incorrectly transposed the Directive.

Appeal dismissed. In a judgment of the court, the Court of Appeal held that the inspector had power to grant permission without an environmental impact assessment.

1. The amended Directive permits member states to use thresholds or criteria for Annex II projects. The purpose of such thresholds is to avoid an individual assessment of every project. The discretion is nevertheless bounded by the requirement that projects likely, by their nature, size or location, to have significant environmental effects be assessed. The court applied the principles stated in the Kraaijeveld case, Case C-72/95, and the Bozen case, Case C-435/97.

2. Article 4(3) and Annex III require a member state, when setting criteria, to take account of matters beyond size, including nature, location and cumulative effects. They do not require every criterion itself to state each of those matters. A size threshold is therefore not, without more, invalid. The question is whether the criteria were set so that excluded projects, considered as a whole, were not likely to have significant environmental effects.

3. On the natural construction of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, the proposed development was neither Schedule 1 development nor qualifying Schedule 2 development. It was not in a sensitive area, did not exceed the threshold, and was not subject to a direction under regulation 4(8). It could not therefore have appeared to the inspector that the application might be an EIA application for the purposes of regulation 9(2).

4. Regulation 4(8) gave the Secretary of State a discretionary power to direct that otherwise non-qualifying Schedule 2 development was EIA development. It did not require a case-by-case examination of every application. Nor did a plausible submission that such a direction might have been made oblige the inspector to refer the matter.

5. The appellant had not shown that, for urban development projects, the Regulations failed to take Annex III matters or cumulative effects into account. The position differed from the Irish case, Case C-392/96, where the transposing legislation itself disclosed the defect. No reference to the European Court of Justice was appropriate. Costs were awarded to the first respondent, with no order for costs in relation to the second respondent.

• Court of Appeal (Civil Division): dismissed the appellant’s challenge to the planning permissions: [2001] EWCA Civ 1012.
• High Court: Mr Duncan Ouseley QC, sitting as a Deputy High Court Judge, held that the applications were not EIA applications and rejected the challenge.