EIA: Environment Impact Assessment: when LPA is also developer: duty to arrange appropriate separation between conflicting functions: Article 9a of Directive 2011/92: Regulation 64(2) of EIA regs 2017

London Historic Parks and Gardens Trust for SSHCLG [2020] EWHC 2580 (Admin) – https://www.bailii.org/ew/cases/EWHC/Admin/2020/2580.html

“1.  In this claim the first issue is whether the United Kingdom has failed to transpose properly into English law the requirements in Article 9a of Directive 2011/92/EU (“the Directive”) for independence and objectivity in the discharge by a “competent authority” of its duties regarding environmental impact assessment of its own projects…”

  1. “The Claimant submits that if it fails on the transposition issue, the handling arrangements set up for the called-in planning application do not comply with regulation 64(2) of the 2017 Regulations. First, Mr Howell QC submits that the arrangements do not refer to that provision or indicate that they have been made in order to discharge those legal requirements. Furthermore, he says that there has been a failure to publicise the arrangements.
    1. “In summary, Mr Howell QC raises the following additional criticisms: –

 

(i) The document relies upon the “Ministerial Code”, paragraph 2.3 of which would treat the Minister of State as being bound by decisions of Cabinet or Ministerial Committee;
(ii) The document allows the Director General to authorise the disclosure of information relating to the Ministry’s handling of the planning application to persons outside those approved for that purpose in the document, without ensuring compliance with regulation 64(2);
(iii) The arrangements were made by the Secretary of State, being the authority whose interest in the achievement of the Memorial project conflicts with the independent discharge of the competent authority’s duties under the 2017 Regulations;
(iv) The arrangements are subject to change by the Defendant or the Permanent Secretary;
(v) The “propriety walls” separating the decision-maker and his team from the project team provide insufficient “insulation”. For example, the arrangements do not exclude discussions about the planning application between the Minster of State and the Secretary of State or other members of the Government or a person involved in promoting the project;
(vi) The office of the Minister of State is integrated with the Defendant’s Ministry, his staff are provided by that Ministry and subject to its supervision;
(vii) Both the Minister of State and his officials are subject to “hierarchical supervision” and therefore subject to pressures from persons involved in promoting the project which may appear to affect their future career prospects.”

“5.In January 2019, the Secretary of State made an application to Westminster City Council (“WCC”) for planning permission for the “installation of the United Kingdom Holocaust Memorial and Learning Centre including …”

  1. It is common ground that the planning application is for a development which is likely to have significant effects on the environment and as such is required to be the subject of an environmental impact assessment by virtue of the 2017 Regulations. The site is near to the Palace of Westminster and Westminster Abbey UNESCO World Heritage Site. The Palace of Westminster is a Grade I listed building.”

 

  1. The Claimant is a small charity with a principal object of preserving and enhancing the quality and integrity of London’s green open spaces. It has been actively involved in the planning process as an objector to the proposed development and has registered as a party in the forthcoming public inquiry on the planning application.”

 

    1. “Article 1(11) inserted Article 9a into Directive 2011/92/EU as follows: –

 

“Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.
Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive.”
  1. The first limb has a broad application. However, it is common ground that the present case is only concerned with the second limb. This accepts that a competent authority may be responsible for assessing the environmental effects of and granting development consent for its own development projects, but then sets out how the conflict of interest is to be handled.”

    1. Under the heading “objectivity and bias” regulation 64 provides: –

 

“(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to conflict of interest.
(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

Commentary

On a more trivial note, this is the first time I have seen a table of contents in a judgement with linked pages which is very practical and helpful:

    1. This judgment is set out under the following headings:

 

Heading Paragraph Numbers
Factual background 5-15
The handling arrangements 16-19
Legislative framework 20-35
A summary of the parties’ cases 36-54
Issue 1: Whether regulation 64(2) properly transposes the seconds limb of article 9a.  
       (i) Whether the UK has complied with Article 2 of Directive 2014/52/EU 56-58
       (ii) The principle of legal certainty and transposition 59-73
       (iii) The criteria for independence and objectivity 74-96
       (iv) Whether those criteria had to be set out expressly in national legislation 97-107
       (iv) Whether the second limb of Article 9a has been properly transposed into English law 108-114
Conclusion on Issue 1 – the transposition issue 115
Issue 2: whether the handling arrangements for the application comply with regulation 64(2) of the 2017 Regulations  
        The Court’s jurisdiction 116-122
        Discussion 123-139
        Delay 140-142
Conclusion on Issue 2 143
Conclusions 144-145

 

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