London Historic Parks And Gardens Trust v Secretary of State for Housing Communities And Local Government

Directive transposition need not reproduce the directive in identical words or place every criterion in legislation. The domestic framework must nevertheless be binding, clear and precise. Administrative practice cannot cure absent, conflicting or incomplete transposition. Article 9a permits the same authority to promote and determine a project, provided functional separation is secured through an identified internal decision-making entity with necessary resources. Those responsible for determining the application must be impartial and excluded from project promotion. Instructions, communications and pressure from promoters must be prohibited. Separate legal personality, a ring-fenced budget and removal of ordinary hierarchy are not required. Tailored arrangements are permissible, but they must be identified as legally binding under Town and Country Planning (Environmental Impact Assessment) Regulations 2017, regulation 64(2), and published.

The claimant, a charitable trust, brought a rolled-up judicial review concerning the Secretary of State’s called-in planning application for the proposed Holocaust Memorial and Learning Centre. The claim challenged both the transposition of the second limb of Article 9a of Directive 2011/92/EU by regulation 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and the handling arrangements adopted for determining the application.

The central questions were whether regulation 64(2) provided a legally certain and adequate transposition, and whether the arrangements secured appropriate functional separation between those promoting the project and those performing the competent authority’s EIA functions.

Outcome. Permission to apply for judicial review was granted. The transposition challenge failed. The handling arrangements did not comply with regulation 64(2) unless amended as directed.

1. Transposition and legal certainty. Under Article 288 TFEU, Member States retain a choice of form and methods. Their legal framework must nevertheless give full effect to a directive in binding, clear and precise terms. Administrative practices cannot cure a failure to transpose, a conflict between domestic law and the directive, or an omitted essential requirement. Identical wording is unnecessary. The court applied and explained the approach in Commission v Germany Case C-29/84, Commission v France Case 252/85 and the other transposition authorities cited.
2. Functional separation. The second limb of Article 9a and regulation 64(2) do not require a separate legal body. The most analogous authority was Department of Environment for Northern Ireland v Seaport Case C-474/10. An identified internal entity, including assisting officials, must have the necessary resources and act impartially. Persons involved in promoting the project must not participate in determining the application. Communications between the decision-making team and promoters or other Government members, and instructions or pressure concerning the EIA functions, must be prohibited.
3. The criteria need not be expressly reproduced in national legislation. Regulation 64(2), read with the administrative arrangements it requires, properly transposed Article 9a and satisfied legal certainty. The provision applies to every duty under the Regulations, including advice and assistance to promoters or decision-makers. Arrangements may be tailored to individual projects and amended, provided they remain compliant. Higher levels of independence applicable to specialist supervisory bodies in Commission v Germany Case C-518/07 and Commission v Austria Case C-614/10 were not applicable.
4. Jurisdiction. The statutory ouster concerning a decision on a called-in application applied to the final decision, not procedural arrangements operating before determination. Judicial review therefore had jurisdiction at this stage. A later challenge could be brought under section 288 of the Town and Country Planning Act 1990, but re-litigation might constitute an abuse of process.
5. Arrangements. The document had to refer expressly to regulation 64(2), be published, and state the operative requirements. It also had to exclude the relevant Minister from paragraph 2.3 of the Ministerial Code and collective ministerial responsibility for the decision, regulate authorisations to disclose information, and prohibit communications, instructions and pressure involving the project or application. Hierarchical supervision and perceived career consequences did not require additional safeguards once those prohibitions were effective and good faith was assumed.

not stated in the judgment.