L.32 - European Court of Justice

See our submission: (L.8)- European Commission This notice below is exactly as it appeared on 19 May 2005-ECJ Site. The case will be heard on 22 June 2005 at 9:30 a.m.

Action brought on 1 December 2003 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland.

An action against the United Kingdom of Great Britain and Northern Ireland was brought before the Court of Justice of the European Communities on 1 December 2003 by the Commission of the European Communities, represented by X. Lewis and F. Simonetti, acting as agents, with an address for service in Luxembourg.

The Applicant claims that the Court should:

declare that by failing to apply correctly Articles 2(1) and 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 1 in relation to the proposed urban development project at White City as a project listed in Annex II, paragraph 10 (b) of the Directive, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive;

declare that by failing to apply correctly Articles 2(1) and 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment in relation to the proposed urban development project at Crystal Palace as a project listed in Annex II, paragraph 10 (b) of the Directive, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive;

declare that by failing to ensure the correct application of Articles 2(1), 4(2), 5(2) and 8 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Directive 97/11/EC 2 when development consent is granted for projects in a multi-stage consent procedure, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive;

order the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Pleas in law and main arguments:

The White City Development

The Commission submits that the competent authority could not reasonably have reached the conclusion that an impact assessment was unnecessary when it based such a conclusion principally or solely on the fact that the land in question had been previously developed. That criterion for excluding the need of an impact assessment is an innovation of Government Circular 15/68. Directive 85/337/EEC contains no such test and it is submitted that, by relying on a ground for excluding an impact assessment which is not found in the aforementioned Directive, the United Kingdom has failed to apply Articles 2(1) and 4(2) of that Directive correctly in the case of the proposed urban development project at White City.

The Crystal Palace Development

The Commission maintains that, by not requiring an impact assessment for the Crystal Palace development, the United Kingdom has exceeded its margin of discretion under Directive 85/377/EEC. The Commission submits that the margin of discretion afforded a Member State under Article 4(2) of the Directive is not unlimited. The limits of that discretion are circumscribed by Article 2(1) of the Directive - i.e. an impact assessment is required where a project, by virtue of its size, nature or location, is likely to have significant environmental effects. The Commission submits that, according to those criteria, the project is likely to have such effects.

Multi-stage procedure governing applications for planning permission

The Commission does not question the legality of dividing the planning process into two stages per se, but submits that the manner in which planning authorisation is actually divided into two stages in the United Kingdom leads to results which are incompatible with Directive 85/337/EEC.

A large urban development project may escape assessment at the outline planning stage and no impact assessment is possible (under English law) at the second, reserved matters stage. Consequently, a large urban development project which is likely to have significant effects on the environment is not considered as a whole but in separate parts. The practical result is that the likely effects on the environment are not considered in the light of the project as a whole.

Even if an environmental impact assessment is carried out at the outline planning stage, it may be inadequate because it is based on the information provided in the outline planning application which may be insufficient to evaluate the effects of the development as a whole on the environment. Thus, the impact assessment will be carried out on an incomplete basis.

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1 - OJ 1985 L 175, p. 40.
2 - OJ 1997 L 73, p. 5.

Last updated 13/6/99