ECJ judgment in Case C-98/04 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
In proceedings under Article 226 of the EC Treaty the Commission alleged that the regime being applied in the United Kingdom (“UK”), whereby a person may apply to a planning authority to issue a Lawful Development Certificate (“LDC”) concerning a project within the meaning of Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC (hereinafter “the EIA Directive”), means that the United Kingdom has failed to ensure the correct application of its obligations under Articles 2(1) and 4 of that Directive.
Despite Advocate-General Ruiz-Jarabo Colomer’s opinion that UK law was in breach of the EIA Directive as alleged the ECJ held the Commission’s application to be inadmissible
“19 During both the pre-litigation stage of the present procedure and the litigation itself, the Commission concentrated its criticisms on the issue of LDCs in so far as it allows by-passing of the procedures governing application for consent and environmental impact assessment required by Directive 85/337 for projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location. 20 The Commission has not put forward any complaints concerning the actual existence of time-limits for the taking of enforcement action against development which does not comply with the applicable rules, although the introduction of LDCs is by its very nature inseparable from the provisions laying down such rules of limitation. Pursuant to section 191 of the TCPA, an LDC is issued, in particular, when no enforcement action may then be taken against the uses or operations concerned, whether because they did not involve development or require planning permission or because the time for enforcement action has expired. 21 Consequently, the present action for failure to fulfil obligations, since it puts before the Court only one aspect of a legal mechanism composed of two inseparable parts, does not satisfy the requirements of coherence and precision referred to above. 22 That conclusion is all the more necessary because the arguments put forward by the United Kingdom Government to contest the failure to fulfil obligations are based, in essence, on the system of time-limits which the Commission failed to include in the subject-matter of the dispute and which, accordingly, could not form the basis of detailed discussion between the parties. 23 It follows from the foregoing that the action must be dismissed as inadmissible.”
James Maurici was junior Counsel for the UK.