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Court of Appeal refers to the ECJ the issue of whether reasons are required for negative screening decisions under the EIA Directive

DATE: 21 Jan 2008

The Court of Appeal (Waller, Arden and Toulson LLJ) today made a reference to the European Court of Justice in the case of R (Christopher Mellor) v Secretary of State for Communities and Local Government.

 

The proceedings concern screening decisions as to whether

Environmental Impact Assessment ("EIA") is required of applications for development consent for projects falling within Annex II of Council Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC. In Mellor the Secretary of State determined that EIA was not required on a planning application for a medium secure hospital unit at HMS Forest Moor, Menwith Hill Road, Harrogate, North Yorkshire.

 

The issues which arise are whether the Secretary of State was required to give reasons for deciding that EIA was not required and, if so, whether her decision provided adequate reasons.

 

In R v Secretary of State for the Environment, Transport and the Regions ex p Marson [1998] Env LR 761 the Court of Appeal (on an application for permission to appeal) held that reasons did not have to be given for refusing to direct that EIA was required. That decision has been followed since by the English Courts: see R. v St Edmundsbury BC Ex p. Walton [1999] Env. L.R. 879 per Hooper J.; BAA Plc v Secretary of State for Transport, Local Government and the [2002] EWHC 1920; [2003] J.P.L. 610; Gillespie v First Secretary of State [2003] EWHC 8; [2003] 1 P. & C.R. 30 and R (Probyn) v Secretary of State for Communities and Local Government (CO/4368/2005, unreported, 24/2/06).

 

The questions referred by the Court of Appeal in Mellor are:

 

1.Whether under Article 4 of Council Directive 85/337/EEC as amended by directives 97/11/EC and 2003/35/EC ("the Directive") Member States must make available to the public reasons for a determination that in respect of an Annex II project there is no requirement to subject the project to assessment in accordance with Articles 5 to 10 of the Directive?

 

2. If the answer to Question 1 is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State?

 

3. If the answer to Question 2 is in the negative, what are the principles governing the adequacy of reasons in this context?

James Maurici appeared for the Secretary of State for Communities and Local Government.