B.7: Importance of Compliance With the Directive
It is clear from this Handbook that the EIA process is complex and involves many decisions and judgements, all of which could be challenged by an aggrieved party either through the domestic Courts or by reference to the European Commission.
Failing to comply with the Regulations may make a decision to grant permission unlawful and lead to it being quashed by the Court. Although the Court has the power not to quash decisions where there has been procedural impropriety, this discretion is very limited in cases involving EIA because of the duty to comply with EC legislation. It can only be exercised where there has been "substantial compliance" with the Directive.
If the project is one to which the Regulations apply it is essential to comply fully with them. It is not sufficient to argue that EIA was not necessary because all of the information that could have been in the Environmental Statement was available elsewhere and was taken into account before the decision was taken; or that had an Environmental Statement been available the decision would have been the same.
In Berkeley v SSETR (2000), the House of Lords unanimously emphasised the need to comply with the Regulations. It took the view that when considering compliance with the Regulations it was necessary to consider the EIA Directive. The Lords stressed that the importance of the EIA process extended beyond the decision on the application. Its purpose is to provide individual citizens with sufficient information about the possible effects and give them the opportunity to make representations. The Court was not entitled to decide after the decision had been made that the requirement of EIA could be dispensed with on the ground that the outcome would have been the same even if these procedures had been followed. In his leading judgement, Lord Hoffman noted that the Directive did not allow Member States to treat “a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the information which should have been provided by the developer”.
Individuals may, and do, complain to the European Commission that planning and other types of applications should have been subject to EIA, or that where EIA was undertaken the procedures were not followed correctly or the information in the Environmental Statement was inadequate. This can lead to formal legal proceedings between the Commission and the United Kingdom, which can be and increase uncertainty for developers and planning authorities.
Nothing can guarantee there will be no legal challenge. But all those involved in the EIA process can minimise the risk of such challenge being successful by ensuring compliance with all of the Regulations. For planning applications particularly:
- All applications should be properly screened and copies of screening opinions placed on the planning register;
- Environmental Statements should contain all of the information required by Schedule 4 of the Regulations;
- All of the significant effects that the project is likely to have on the environment should be identified and taken into account prior to a decision to allow the project to go ahead;
- The permission that is granted should relate only to the project whose environmental effects have been described, assessed and mitigated in the Environmental Statement;
- A record of all decisions and the reasons for them should be kept.