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Seaport (NI) Ltd, Magherafelt District Council and Others v Department of the Environment for Northern Ireland

DATE: 20 Oct 2011

On 20 October 2011 The Court of Justice of the European Communities (Fourth Chamber, comprising J.-C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen, C. Toader (Rapporteur) and E. Jaraðiûnas, Judges) gave judgment in Case C-474/10 Seaport (NI) Ltd, Magherafelt District Council and Others v Department of the Environment for Northern Ireland. This was a reference from the Court of Appeal of Northern Ireland. Made in the course of an appeal from Weatherup J. ([2007] NIQB 62; [2008] Env. L.R. 23).

The questions referred were:

‘1. On the proper construction of [Directive 2001/42/EC on the Assessment of the effects of certain plans and programmes on the environment], where a State authority which prepares a plan falling within Article 3 is itself the authority charged with overall environmental responsibility in the Member State, is it open to the Member State to refuse to designate under Article 6(3) any authority to be consulted for the purposes of Articles 5 and 6?

2. On the proper construction of Directive [2001/42], where the authority preparing a plan falling within Article 3 is itself the authority charged with overall environmental responsibility in the Member State, is the Member State required to ensure that there is a consultation body which will be designated that is separate from that authority?

3. On the proper construction of the Directive, may the requirement in Article 6(2) to the effect that the authorities referred to in Article 6(3) and the public referred to in 6(4) be given an early and effective opportunity to express their opinion “within appropriate time frames”, be transposed by rules which provide that the authority responsible for preparing the plan shall authorise the time-limit in each case within which opinions shall be expressed, or must the rules transposing the Directive themselves lay down a time-limit, or different time-limits for different circumstances, within which such opinions shall be expressed?’

The Court ruled:

"1. In circumstances such as those in the main proceedings, Article 6(3) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment does not require that another authority to be consulted as provided for in that provision be created or designated, provided that, within the authority usually responsible for undertaking consultation on environmental matters and designated as such, a functional separation is organised so that an administrative entity internal to it has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to fulfil the tasks entrusted to authorities to be consulted as provided for in Article 6(3) and, in particular, to give an objective opinion on the plan or programme envisaged by the authority to which it is attached.

2. Article 6(2) of Directive 2001/42 must be interpreted as not requiring that the national legislation transposing the directive lay down precisely the periods within which the authorities designated and the public affected or likely to be affected for the purposes of Article 6(3) and (4) should be able to express their opinions on a particular draft plan or programme and on the environmental report upon it. Consequently, Article 6(2) does not preclude such periods from being laid down on a case-by-case basis by the authority which prepares the plan or programme. However, in that situation, Article 6(2) requires that, for the purposes of consultation of those authorities and the public on a given draft plan or programme, the period actually laid down be sufficient to allow them an effective opportunity to express their opinions in good time on that draft plan or programme and on the environmental report upon it."

In so ruling on the first matter the Court disagreed with the opinion of the Advocate-General and upheld the case advanced by the United Kingdom.

James Maurici appeared for the United Kingdom on the reference.