High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The Recitals to the Directive.

Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment because it ensures that the effects of implementing plans and programmes are taken into account during their preparation and before their adoption (Recital 4).

Action is required at community level to lay down a minimum environmental assessment framework which would set out the broad principles of the environmental assessment system and leave the details to the Member States (Recital 8).

The Directive is of a procedural nature and its requirements should either be integrated into existing procedures in Member States or incorporated in specifically established procedures (Recital 9).

In order to contribute to more transparent decision-making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes and that appropriate timeframes are set allowing sufficient time for consultations including the expression of opinion (Recital 15).

The Environmental Report and the opinions expressed by the relevant authorities and the public should be taken into account during the preparation of the plan or programme and before its adoption (Recital 17).

The terms of the Directive.

Article 2 deals with definitions. "Environmental assessment" means the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4 to 9. "Environmental report" means the part of the plan or programme documentation containing the information required in Article 5 and Annex 1.

Article 5 deals with the environmental report. Article 5.1 provides that where an environmental assessment is required an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex 1. Article5.2 provides that such environmental report shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. Article 5.4 provides that the authorities referred to in Article 6.3 shall be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report.

Article 6 deals with consultations. Article 6.1 provides that the draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in Article 6.3 and the public. Under Article 6.2 the authorities and the public shall be given an early and effective opportunity within appropriate timeframes to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure. By Article 6.3 Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental affects of implementing plans and programmes. Article 6.5 provides that the detailed arrangements for the information and consultation of the authorities of the public shall be determined by the Member States.

Annex 1 sets out the information referred to in paragraph 5.1 that should be included in an environmental report.

The Regulations.

Regulation 4 provides that the Department of the Environment shall be the consultation body. However where the Department of the Environment is at any time the responsible authority as regards a plan or programme, it shall not at the same time exercise the functions under the regulations of the consultation body in relation to the plan or programme.

Regulation 11 provides for the preparation of environmental reports. The reports shall identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme and reasonable alternatives. Further, when deciding on the scope and level of detail of the information that must be included in the report, the responsible authority shall consult the consultation body.

Regulation 12 deals with consultation procedures. A draft plan and environmental report are to be made available to the consultation body and the public.

Schedule 2 sets out the information to be included in environmental reports as required by Annex 1 of the Directive.

The Guidance

The Office of the Deputy Prime Minister issued "A Practical Guide to the Strategic Environmental Assessment Directive" in September 2005. The guidance was developed with the Department of the Environment for Northern Ireland and provides information and guidance on how to comply with the Directive. Paragraph 3.1 states that the guidance is not intended as an interpretation of the law

The applicant's grounds for judicial review.

"1. Whether, in respect of cases where the Department of the Environment is the responsible authority, it has failed to comply with its obligations under Article 6(3) of Directive 2001/42/EC on Strategic Environmental Assessment ("the SEA Directive") to designate one or more appropriate consultation authorities.

2. Whether regulation 12 of the Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004 fails to transpose the requirement in Article 6(2) of Directive 2001/42/EEC that both the authorities with the relevant environmental responsibility and the public are given an early and effective opportunity within appropriate timeframes to express their opinion the environmental assessment."

None of the notice parties entered an appearance in the proceedings.

The first transposition issue - Article 6.3

"Member States shall designate authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes."

This is transposed by Regulation 4 which provides that -

"(1) Subject to paragraph (2), for the purposes of these Regulations, the Department of the Environment shall be the consultation body.

(2) Where the Department of the Environment is at any time the responsible authority as regards a plan or programme, it shall not at the same time exercise the functions under these Regulations of the consultation body in relation to the plan or programme; and the references to the consultation body in the following provisions of these Regulations shall be construed accordingly."

"Regarding the nature and extent of community action, community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the treaty. While respecting community law, care should be taken to respect well established national arrangements and the organisation and working of Member States legal systems. Where appropriate and subject to the need for proper enforcement, community measures should provide Member States with alternative ways to achieve the objectives of the measures."

The second transposition issue - Article 6.2.

"The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate timeframes to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure."

This is transposed by Regulation 12 which provides that –

"(1) Every draft plan or programme for which an environmental report has been prepared in accordance with regulation 11 and its accompanying environmental report ("the relevant documents") shall be made available to the consultation body and to the public in accordance with the following provisions of this regulation.

(2) As soon as reasonably practicable after their preparation, the responsible authority shall send a copy of the relevant documents to the consultation body and invite it to express its opinion on the relevant documents within a specified period.

(3) The responsible authority shall also-

(a) within 14 days of the preparation of the relevant documents, publish in accordance with paragraph (5), or secure the publication of, a notice-

(i) stating the title of the plan, programme or modification;

(ii) stating the address (which may include a website) at which a copy of the relevant documents may be inspected or from which a copy may be obtained;

(iii) inviting expressions of opinion on the relevant documents;

(iv) stating the address to which, and the period within which, opinions must be sent; and

(b) keep a copy of the relevant documents available at its principal office for inspection by the public at all reasonable times and free of charge; and

(c) publish a copy of the relevant documents on the authority's website.

(4) The periods referred to in paragraphs (2) and (3)(a)(iv) must be of such length as will ensure that those to whom the invitation is extended are given an early and effective opportunity to express their opinion on the relevant documents.

(5) Publication of a notice under paragraph (3)(a) shall be by such means as will ensure that the contents of the notice are likely to come to the attention of the public affected by, or likely to be affected by, or having an interest in, the draft plan or the programme.

(6) Nothing in paragraph (3)(a)(ii) shall require the responsible authority to provide a copy of the documents concerned free of charge; but where a charge is made, it shall be of a reasonable amount.

"The timeframe needs to be laid down in legislation. Member States are free to determine its duration so long as it meets the requirement to give an `early and effective' opportunity for responses" (paragraph 7.9).

"Different timeframes may be appropriate for different types of plan or programme but care should be taken to allow sufficient time for opinions to be properly developed and formulated on lengthy, complex, contentious or far-reaching plans or programmes. Adequate time will also be needed for the planning authority to take these views into account before deciding on the plan or programme" (paragraph 7.10).

"It is important in each individual case to determine the nature of the provision, laid down in a Directive, to which the action for infringement relates, in order to gauge the extent of the obligation to transpose imposed on the Member States."

The ECJ stated that the UK's argument that the most appropriate way of implementing the Habitats Directive was to confer specific powers on nature conservation bodies and to impose on them the general duty to exercise their function so as to secure compliance with the requirements of that Directive could not be upheld. The UK legislation implementing the Habitat's Directive was found at paragraph 27 to be –

"…. so general that it does not give effect to the Habitat's Directive with sufficient precision and clarity to satisfy fully the demands of legal certainty and that it also does not establish a precise legal framework in the area concerned, such as to ensure the full and complete application of the Directive and allow harmonised and effective implementation of the rules which it lays down."

The contents of Environmental Reports.

(1) An outline of the contents and main objectives of the plan or programme, and of its relationship with other relevant plans and programmes.

(2) The relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme.

(3) The environmental characteristics of areas likely to be significantly affected.

(4) Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of particular environmental importance, such as areas designed pursuant to Council Directive 79/409/EEC on the conservation of wild birds and the Habitat's Directive.

(6) The likely significance effects on the environment, including short, medium and long term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage, including architectural and archaeological heritage, landscape and the inter relationship between the issues listed.

(8) An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know how) encountered in compiling the required information.

(10) A non technical summary of the information provided under paragraphs 1 to 9.

The development of plans and environmental reports.

"The respondent has failed to ensure early and effective consultation in relation to both the DSEA and the DMAP by –

(a) Failing to consult on the DSEA prior to the publication of the DMAP.

(b) Failing to publish a DSEA at the same time as publication of the DMAP.

(c) Failing to publish a DSEA that complies with the requirements of the Directive; and

(d) Improperly restricting the range of issues upon which the public were entitled to comment when published the revised DSEA."

"As a matter of good practice the environmental assessment of plans and programmes should influence the way the plans and programmes themselves are drawn up. While a plan or programme is relatively fluid, it may be easier to discard elements which are likely to have undesirable environmental affects than it would when the plan or programme has been completed. At that stage, an environmental assessment may be informative but is likely to be less influential. Article 4.1 places a clear obligation on authorities to carry out the assessment during the preparation of the plan or programme" (paragraph 4.2).

[47] The scheme of the Directive and the Regulations clearly envisages the parallel development of the environmental report and the draft plan with the former impacting on the development of the latter throughout the periods before, during and after the public consultation. In the period before public consultation the developing environmental report will influence the developing plan and there will be engagement with the consultation body on the contents of the report. Where the latter becomes largely settled, even though as a draft plan, before the development of the former, then the fulfilment of the scheme of the Directive and the Regulations may be placed in jeopardy. The later public consultation on the environmental report and draft plan may not be capable of exerting the appropriate influence on the contents of the draft plan.

The first applicant's delay.

[53] The respondent contends that the first applicant delayed in making the application for judicial review on 23 November 2005. Order 53 rule 4 of the Rules of the Supreme Court requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose, unless the court considers that there is good reason for extending the period within which the application may be made. For this purpose it is necessary to distinguish between the two broad grounds of challenge in the present cases, being in the first place the transposition of the provisions of the Directive into the Regulations and secondly compliance with the requirements of the Directive and the Regulations.