QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF JOHN CATT | Claimant | |
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BRIGHTON & HOVE CITY COUNCIL | Defendant | |
BRIGHTON & HOVE ALBION FOOTBALL CLUB | Interested Party |
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Mrs Harriet Townsend (instructed by LA Solicitors) appeared on behalf of the Defendant
Mr Jonathan Clay (instructed on behalf of DMH Stallard) appeared on behalf of the Interested Party
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"The application for an ECJ reference seems to me to be a weak one but, as the claimant's complaint has been accepted and registered by the Commission, there should be an oral hearing before a decision on the application is made."
The background facts
"(1) relying upon mitigation measures that were complex and said to be inadequate; and
(2) failing to take into account cumulative impacts including other uses at the Stadium, particularly when those uses were causing significant disturbance."
"When determining whether or not a project is 'EIA development' for the purpose of the EIA Directive, 85/337/EC and, given that Article 5(3) of the Directive requires that information provided in an environmental statement should include, inter alia, a description of the measures envisaged to avoid, reduce and, if possible, remedy significant adverse effects whether:
(1) a decision-making authority must direct its mind to whether the development as described in the application would be likely to have significant environmental effects, or is it entitled to consider whether the development described in the application, subject to certain mitigation measures, would be likely to have significant environmental effects?
(2) If it is permissible for the decision-making authority to consider mitigation measures, can mitigation measures still be taken into account if their effect is uncertain or contentious, or if they would not be part of the project design itself (such as off-site measures)?"
"Mr Upton's central submission is that the screening opinion was unlawful because it unlawfully relied on prospective mitigation measures when considering whether the development was likely to have significant effects on the environment. The correct approach is to consider the development described in the application, it is submitted, and not the development subject to proposed mitigation measures. Existing measures dealing with the additional traffic created by matches remained controversial and problematical, it is submitted, and the measures proposed to allow for the extension of seating were untried. Assumptions are made about the success of remedial measures. Past remedial measures do not necessarily deal with future problems. The Council also wrongly had regard to unspecified alternative transport proposals."
As it seems to me, it is clear that the overall factual circumstances to which the Court of Appeal's attention was being drawn in 2007 are the same as those with which the court is concerned today.
"33 ... it would be ludicrous to ignore conditions imposed as to the frequency of football matches, the days on which they may be played and the music which may accompany them."
Pill LJ was dealing with the same argument on similar facts as this court is dealing with in the present application for judicial review.