Mellor, R (on the application of) v Secretary of State for Communities and Local Government

An appellate court should ordinarily hear the full appeal before referring questions to the European Court of Justice. A reference made without a fully reasoned lower-court judgment is unusual and requires exceptional circumstances. Such circumstances may arise where the issue concerns interpretation of EU legislation, involves policy considerations on which Member States may differ, and requires an early authoritative answer. A carefully reasoned Court of Appeal decision refusing permission to appeal is not binding as such, but may deserve very special regard. Here, those circumstances justified an early reference concerning the need to give reasons for deciding that an environmental impact assessment was unnecessary.

The appellant challenged the Secretary of State’s screening decision that an environmental impact assessment was not required for a planning application concerning a medium secure hospital unit. Owen J refused the application for judicial review in the Administrative Court. Before the full appeal was heard, the parties applied for questions concerning the interpretation of EU environmental assessment legislation to be referred to the European Court of Justice. The questions included whether reasons were required for a decision declining to require an environmental impact assessment and, if so, whether the reasons given were adequate. The central procedural issue was whether a reference should be made at that stage despite the absence of a fully reasoned judgment from the lower court.

1. Reference granted. The Court of Appeal referred the agreed questions, with the agreed amendment to question 3, to the European Court of Justice before hearing the full appeal.
2. It was unusual to make a reference before a full appeal had been heard. Where the lower court had not delivered a fully reasoned judgment, such a course required exceptional circumstances. The court considered that the circumstances here satisfied that threshold.
3. The issue whether reasons were required for declining to require an environmental impact assessment depended on the interpretation of Council Directive 85/337/EEC, as amended by 97/11/EC and 2003/35/EC. It was fundamentally a question of law. It also involved policy considerations on which other Member States might have different views.
4. The court considered R v Secretary of State for the Environment, Transport and the Regions ex p Marson [1998] Env LR 761. That decision, having refused permission to appeal, was not binding on the court as such. Nevertheless, it was carefully reasoned and intended to guide challenges concerning the adequacy of reasons, so it merited very special regard. The question whether it should be followed in the light of later developments had not been fully argued, and no view was expressed on it.
5. The existence of later European jurisprudence and potential infringement proceedings under article 226(2) of the Treaty reinforced the need for an early and clear ruling. The Court of Justice was better placed to assess the relevant policy considerations throughout the Community and to determine whether any gap in the directive should be filled by interpretation.

• Court of Appeal (Civil Division): The court granted the application to refer questions to the European Court of Justice before determining the full appeal.
• Administrative Court: Owen J refused the application for judicial review. No citation is stated in the judgment.