R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents)
R (on the application of Heathrow Hub Limited and another) (Appellants) v The Secretary of State for Transport and another (Respondents)
R (on the application of Hillingdon London Borough Council and others) (Appellants) v The Secretary of State for Transport (Respondent)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
22 January 2014
Heard on 15 and 16 October 2013
|David Elvin QC
(Instructed by King & Wood Mallesons LLP)
|Tim Mould QC
James Maurici QC
(Instructed by Treasury Solicitors)
(Instructed by Nabarro LLP)
Tim Mould QC
James Maurici QC
(Instructed by Treasury Solicitors)
Nathalie Lieven QC
Kassie Smith QC
(Instructed by Harrison Grant Solicitors)
Tim Mould QC
James Maurici QC
(Instructed by Treasury Solicitors)
LORD CARNWATH (with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree)
"That powers to deliver this proposed high speed rail network should be secured by means of a single Hybrid Bill, to be introduced subject to public consultation, environmental impact assessment and further detailed work on funding and costs to feed into decisions to be taken in the next Spending Review. Depending on Parliamentary timescales and approval, this could allow construction to begin after the completion of London's Crossrail line, opening from 2017, with the high speed network opening in phases from 2026."
i) SEA whether the DNS in the circumstances of HS2 is a "plan or programme" which "sets the framework for development consent" and was "required by administrative provisions" within the meaning of articles 2-3 of Directive 2001/42/EC ("the SEA Directive").
ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences.
iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU ("the EIA Directive"), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip.
iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed;
v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court.
Since the hearing the hybrid bill for Phase 1 has been introduced to Parliament and received its first reading on 25 November 2013. The issues relating to the parliamentary process (iii) and (iv) will be discussed by Lord Reed, with whose reasoning and conclusions I agree.
The SEA Directive
"1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive] …."
HS2 is such a transport project.
"- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
- which are required by legislative, regulatory or administrative provisions."
"The characteristics of plans and programmes, having regard, in particular, to
- the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources,
- the degree to which the plan or programme influences other plans and programmes including those in a hierarchy,
(i) Terre wallonne ASBL and Inter-Environnement Wallonie ASBL v Région wallonne (Joined Cases C-105/09 and C-110/09)  ECR I-5611 ("Terre wallonne")
(ii) Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale (Case C-567/10)  2 CMLR 30 ("I-E Bruxelles")
(iii) Nomarchiaki Aftodioikisi Aitoloakarnanias v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Case C-43/10)  Env LR 21 (Grand Chamber) ("Nomarchiaki")
Required by administrative provisions
"There may be some uncertainty as to what in the definition is meant by 'administrative', as opposed to 'legislative or regulatory', provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption."
Setting the framework
"67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources."
"In the context of such consideration, the framework set by the action programme has at least the effect that it must be possible for the installation to be operated in accordance with the provisions of the programme. At the same time, however, development consent can hardly be refused on grounds of the pollution of waters by nitrate from agriculture if the project complies with the rules of the programme. Certain alternatives, which are harmful to the environment as gauged by the objectives of the action programme, are thus excluded and others, which possibly afford water greater protection, do not have to be examined and taken into consideration…." (para 82 emphasis added)
As I read her opinion, the references to "influence" in the earlier paragraphs were to indicate that something less than a specific determination of the nature of the project would suffice. On the other hand, the latter paragraph shows that "influence" as such might not be enough; the critical factor was that consideration of certain environmental effects would in practice be excluded altogether.
"54. In such a situation, the existence and scope of which it is nevertheless for the national court to assess in the light of the action programme concerned, it must be held that the action programme is to be regarded, in respect of those measures, as setting the framework for future development consent of projects listed in Annexes I and II of Directive 85/337 within the meaning of Article 3(2)(a) to Directive 2001/42."
Accordingly, in answer to the relevant question, it held that an action programme adopted pursuant to article 5(1) of Directive 91/676 was in principle a plan or programme covered by article 3(2)(a) since it constituted a "plan" or "programme" within the meaning of article 2(a) and –
"contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Council Directive 85/337."
"That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures." (emphasis added)
"It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, [Inter-Environnement Bruxelles and Others (Case C-567/10)  CMLR 909, para 30)].." (emphasis added)
The Court of Appeal
"At one end of the spectrum is the plan or programme which conclusively determines whether consent is given and all material conditions. Such a plan or programme clearly sets the framework. It is an example of legal influence of highest order. At the other end of the spectrum is the plan or programme which identifies various development options, but which states that the decision-maker is free to accept or reject all or any of the options." (para 54)
"We would not… rule out the possibility that a plan or programme may set the framework where it has sufficiently potent factual influence, but (as we shall explain) not where the decision-maker is Parliament. If it is clear that the decision-maker will follow the recommendations contained in a plan or programme and the measures are likely to have significant effects on the environment, then the mere fact that the decision-maker is not legally obliged to make a decision in accordance with the plan or programme might not be a sufficient reason for holding that the plan or programme does not set the framework. But in our view, there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework…" (para 50, emphasis added)
"Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do. Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive. No final decision has yet been taken as to the form or length of debate that is to take place in Parliament." (para 56)
"When considering the status of the DNS in the hybrid Bill procedure it must be recognised that the Government has a dual role. Having devised the 'plan' the Government is not merely the promoter of the project, it will actively participate in the decision-making process under the hybrid Bill procedure. Parliament is constitutionally distinct from the executive, but members of the Government are members of Parliament…The well-established convention of collective ministerial responsibility will ensure that the plan prepared by the Government (the DNS) will in fact have a very significant influence on Parliament's decision making process in respect of a Government Bill." (para 173)
Drawing a parallel with the purposive approach of the CJEU to legislative decisions in the context of the EIA, he thought that the court should look at "the substance and not simply the constitutional formality of the entire decision-making process" (para 174).
"The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures… Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context."
He referred also (para 14 of that judgment) to an extract from the European Commission's first report on the application of the SEA Directive ((COM(2009) 469 final, para 4.1):
"The two Directives are to a large extent complementary: the SEA is 'up-stream' and identifies the best options at an early planning stage, and the EIA is 'down-stream' and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur. However, different areas of potential overlaps in the application of the two Directives have been identified.
In particular, the boundaries between what constitutes a plan, a programme or a project are not always clear, and there may be some doubts as to whether the 'subject' of the assessment meets the criteria of either or both of the Directives."
"96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here."
i) SEA Directive Article 5 provides that the environmental report must "identif[y] describ[e] and evaluat[e]" the likely significant effects on the environment of implementing both the plan or programme itself, and "reasonable alternatives". Annex 1 sets out the information to be given, including "an outline of the reasons for selecting the alternatives dealt with" and a description of how the assessment was undertaken.
ii) EIA Directive Article 5 requires the statement to include the information specified in annex IV, which includes simply "an outline" of the main alternatives studied by the developer and an indication of the "main reasons for this choice, taking into account the environmental effects".
The reasons for this difference are not obvious. It may simply reflect the different stages at which the two exercises are carried out. At the earlier stage of strategic assessment neither the proposed plan nor the alternatives will need to have been worked up to the same degree of detail as will be appropriate at the EIA stage. At the latter stage to require an equivalent degree of detail for the rejected alternatives may be seen as unduly burdensome.
"The Government concluded that alternative strategies for motorways or a new conventional or enhanced existing rail network were not capable of meeting the plan objectives set for high speed rail. It is obviously a contestable view as to whether those objectives should be met, or can be met to a large extent by means other than a new high speed rail network. These alternative strategies could not, however, have constituted reasonable alternatives to the plan for assessment in the SEA, since they are incapable by their very nature of meeting all the objectives for a new high speed rail network. The sifting process whereby a plan is arrived at does not require public consultation at each sift. This whole process has been set out in considerable detail in the many published documents for those who wished to pursue it, but it did not all have to be in an SEA." (para 162)
"…our conclusion that the DNS is not a plan or programme setting the framework for future development consent does not in our view involve any incompatibility with article 7. If a plan or programme does not set the framework, it is difficult to see how article 7 can have been intended to apply to it. In such a case, the requisite degree of public participation can be achieved through compliance with the requirements of the EIA Directive in the development consent procedure for a specific project."
Sullivan LJ was unpersuaded by this reasoning. He thought that consultation under the EIA Directive was an inadequate response to article 7, because by that time "strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold." (para 178)
"Experience has shown that that case law now provides sufficient guidance to enable national courts and tribunals - and in particular specialised courts and tribunals - to decide many cases for themselves without the need for a reference ..."
That approach is also reflected in the recommendation issued by the court in September 2012, to which Lord Sumption has referred.
LORD REED (with whom Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption and Lord Carnwath agree)
Hybrid bill procedure and the EIA Directive
Hybrid bill procedure
The relevant standing orders
The appellants' argument
"This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process."
As construed by the Court of Justice, however, that provision applies only where the objectives of the Directive are fulfilled by the legislative process.
"The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in article 2(2) and shall for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken."
The procedure must therefore permit the public to produce information demonstrating why the HS2 project should not proceed, and that information must be capable of influencing the outcome of the decision-making process. In particular, these appellants must be able to provide information about their proposal for the optimised alternative, and Members of Parliament must be able to consider it and to be influenced by it.
"The public shall be informed, whether by public notices or by other appropriate means such as electronic media where available, of the following matters early in the environmental decision-making procedures referred to in article 2(2) and, at the latest, as soon as information can reasonably be provided:
… (g) details of the arrangements for public participation made pursuant to paragraph 5 of this article."
"Member states shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a member state requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive."
The respondents' argument
National legislation and the EIA Directive
"This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process."
It might have been thought, in the light of that provision, that the Directive would not apply to the HS2 project if its details were adopted by a specific Act of Parliament. The Court of Justice has however given article 1(4) what might diplomatically be described as a purposive interpretation: in effect, "since" has been construed as meaning "provided that".
"78. It follows from that provision that, where the objectives of Directive 85/337, including that of supplying information, are achieved through a legislative process, that directive does not apply to the project in question (see Case C-287/98 Linster  ECR I-6917, para 51; Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and others  ECR I-0000,  Env LR 14 , para 36; and Case C-182/10 Solvay and others  ECR I-0000,  Env LR 27, para 30).
79. That provision lays down two conditions for the exclusion of a project from the scope of Directive 85/337. The first requires the details of the project to be adopted by a specific legislative act. Under the second, the objectives of the directive, including that of supplying information, must be achieved through the legislative process (see Case C-435/97 WWF and others  ECR I-5613, para 57; Boxus and others, para 37; and Solvay and others, para 31)."
"83. As regards the second condition, it is clear from article 2(1) of Directive 85/337 that the fundamental objective of the Directive is to ensure that projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their environmental effects before consent is given (see Case C-287/98 Linster  ECR I-6917, para 52; Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and others  ECR I-0000,  Env LR 14, para 41; and Case C-182/10 Solvay and others  ECR I-0000,  Env LR 27, para 35)."
The fundamental objective is thus the assessment of the environmental effects of projects before consent is given.
"84. In addition, the sixth recital in the preamble to Directive 85/337 states that the assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question (see Case C-435/97 WWF and others  ECR I-5613, para 61; Linster, paragraph 53; Boxus and others, para 42; and Solvay and others, para 36)."
The assessment must therefore be based upon appropriate information.
"85. Consequently, the national legislature must have sufficient information at its disposal at the time when the project is adopted. In accordance with article 5(3) of Directive 85/337 and Annex IV thereto, the minimum information to be supplied by the developer is to include a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment (see Boxus and others, para 43, and Solvay and others, para 37).
86. There is however nothing to prevent the national legislature, when adopting a project, from using information gathered as part of an earlier administrative procedure and the EIA produced in that connection, provided that the EIA is based on information and knowledge that are not out of date. The EIA, which must be carried out before the decision-making process, involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data (see Case C-50/09 Commission v Ireland  ECR I-873, para 40)."
The legislature must therefore have appropriate information at its disposal at the time when the project is adopted.
"88. However, a legislative act which does no more than simply 'ratify' a pre-existing administrative act, by merely referring to overriding reasons in the public interest, without the prior initiation of a substantive legislative process enabling the conditions stated in paragraph 79 of this judgment to be fulfilled, cannot be regarded as a specific legislative act within the meaning of article 1(5) of Directive 85/337 and is not therefore sufficient to exclude a project from the scope of that directive (see Boxus and others, para 45, and Solvay and others, para 39).
89. In particular, a legislative act adopted without the members of the legislative body having had available to them the information mentioned in paragraph 85 of this judgment cannot fall within the scope of article 1(5) of Directive 85/337 (see Boxus and others, para 46, and Solvay and others, para 40)."
The references in those paragraphs to article 1(5) refer to the provision in Directive 85/337 corresponding to article 1(4) of the codified EIA Directive. It is clear from paragraph 88 that article 1(4) requires a substantive legislative process, rather than the mere ratification of an administrative decision. In other words, the decision must in reality be that of the legislature: its role must not be merely formal. Paragraph 89 reiterates the requirement that appropriate information should be available to the members of the legislative body.
"90. It is for the national court to determine whether those conditions have been satisfied. For that purpose, it must take account of both the content of the legislative act adopted and the entire legislative process which led to its adoption, in particular the preparatory documents and parliamentary debates (see Boxus and others, para 47, and Solvay and others, para 41)."
It is therefore for national courts, not the Court of Justice, to determine whether the conditions laid down by the court in that judgment have been satisfied in a particular national context: in particular, in relation to the second condition, whether the decision to adopt the project was the outcome of a substantive legislative process, and whether appropriate information was available to the members of the legislature at the time when the project was adopted.
"54. The requirements flowing from article 9 of the Aarhus Convention and article 10a of Directive 85/337 presuppose in this regard that, when a project falling within the ambit of article 6 of the Aarhus Convention or of Directive 85/337 is adopted by a legislative act, the question whether that legislative act satisfies the conditions laid down in article 1(5) of that directive and set out in paragraph 37 of the present judgment must be amenable to review, under the national procedural rules, by a court of law or an independent and impartial body established by law.
55. If no review procedure of the nature and scope set out above were available in respect of such an act, any national court before which an action falling within its jurisdiction is brought would have the task of carrying out the review described in the previous paragraph and, as the case may be, drawing the necessary conclusions by disapplying that legislative act."
Articles 1(5) and 10a of Directive 85/337 correspond to articles 1(4) and 11 respectively of the EIA Directive in its codified form.
"Where a decision is reached by a legislative process, however, such public participation already exists. The legislature itself is composed of democratically-elected representatives of the public. When the decision-making process takes place within such a body, it benefits from indirect, but nevertheless representative, public participation."
Is the application premature?
"In many, and possibly most, circumstances the proper course would undoubtedly be for the courts to invite the applicant to renew his application if and when an order was made, but in some circumstances an expression of view on questions of law which would arise for decision if Parliament were to approve a draft may be of service not only to the parties, but also to each House of Parliament itself."
The present case is of course concerned with a proposal to seek Parliamentary approval of a bill rather than a draft Order in Council; and there is in consequence a prior constitutional question, as I have explained, as to whether the issues of law raised by the appellants would indeed arise for decision in the event that the bill were to be enacted. In that respect, this case is distinguishable from Ex p Smedley, and from the analogous case of R v Electricity Commissioners, Ex p London Electricity Joint Committee (1920) Ltd  1 KB 171. The approach adopted in those cases nevertheless has much to recommend it in the present circumstances. Adopting the words of Younger LJ in the case of the Electricity Commissioners at p 213, the interference of the court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, may be an assistance to Parliament.
The compatibility of the procedure envisaged with the EIA Directive
"In my view, in order to assess whether that has happened in any particular case, the national court will need to examine the following aspects …
(b) process: was the appropriate procedure respected and was the preparation time and discussion time sufficient for it to be plausible to conclude that the people's elected representatives were able properly to examine and debate the proposed project?"
Similarly in the Nomarchiaki case Advocate General Kokott referred at points 136-137 to a requirement that the legislature "performs its democratic function correctly and effectively", and to the need to clarify whether the legislature "was able properly to examine and debate the environmental effects of the project". I observe however, first, that those statements were not endorsed by the Court of Justice, and secondly, that their focus is upon the ability of the legislature to examine and debate the proposed project, rather than upon a qualitative assessment of the legislature's actual consideration of the proposal.
LORD SUMPTION (with whom Lord Neuberger, Lord Mance, Lord Kerr and Lord Reed agree)
"contains criteria or conditions which guide the way the consenting authority decides an application for development consent. Such criteria could place limits on the type of activity or development which is to be permitted in a given area; or they could contain conditions which must be met by the applicant if permission is to be granted; or they could be designed to preserve certain characteristics of the area concerned (such as the mixture of land uses which promotes the economic vitality of the area)."
"12. However, courts or tribunals against whose decisions there is no judicial remedy under national law must bring such a request before the Court, unless the Court has already ruled on the point (and there is no new context that raises any serious doubt as to whether that case-law may be applied in that instance), or unless the correct interpretation of the rule of law in question is obvious.
13. Thus, a national court or tribunal may, in particular when it considers that sufficient guidance is given by the case-law of the Court of Justice, itself decide on the correct interpretation of European Union law and its application to the factual situation before it. However, a reference for a preliminary ruling may prove particularly useful when there is a new question of interpretation of general interest for the uniform application of European Union law, or where the existing case-law does not appear to be applicable to a new set of facts."
"(4) 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 in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions."
"An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included."
"'plans and programmes' shall mean plans and programmes. . . as well as any modifications to them
– which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
– which are required by legislative, regulatory or administrative provisions;" (emphasis supplied)
". . . an environmental assessment shall be carried out for all plans and programmes (a) which are prepared for . . . transport . . . and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC." (emphasis supplied)
Construction of lines for long distance railway traffic is one of the projects listed in Annex I to Directive 85/337/EEC, now consolidated in Directive 2011/92/EU.
"To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources" (para 67).
". . . an action programme adopted pursuant to article 5(1) of Directive 91/676 is in principle a plan or programme covered by article 3(2)(a) of Directive 2001/42 since it constitutes a 'plan' or 'programme' within the meaning of article 2(a) of the latter directive and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Directive 85/337" (para 55) (emphasis supplied).
"That interpretation would thus run counter to the Directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures" (para 30). (emphasis supplied)
Thus in Nomarchiarcki, the Grand Chamber stated that:
"It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny" (para 95) (emphasis supplied).
"An interpretation of 'framework' in article 3(2)(a) which would enable the governments of member states to carve out an exemption from the SEA Directive for those projects for which they choose to obtain development consent by 'specific acts of national legislation' would be contrary to the purposive approach to the interpretation of the Directive adopted by the Court of Justice in the Terre wallonne and Inter-Environement Bruxelles cases." (para 164)
I also think that the disagreement in the Court of Appeal was more properly characterised by him as a disagreement as to
"whether the fact that a member state chooses to adopt a process of granting development consent for a major project which will have a significant environmental effect by way of an act of national legislation is sufficient, of itself, to place the Government's adoption of its plan or programme outwith the scope of the European-wide strategic environmental protection conferred by the SEA Directive" (para 188).
Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Sumption, Lord Reed and Lord Carnwath agree)
The issues arising under the Directives
"projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process".
The constitutional basis of European Union legislation
"The general principle of legal certainty, which is a fundamental principle of Community law, requires, in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly (see [Belgium v Commission (Case C-110/03)  ECR I-2801, para 30, and IATA and ELFAA (Case C-344/04)  ECR I-403, para 68]).
The principle is "part of the legal order of the Community", now the Union, as the Court said in Deutsche MilchKontor GmbH v Federal Republic of Germany Joined Cases 205-215/82  ECR 2633, para 30. Union citizens and others need to know and are entitled to expect that the legislation enacted by their European legislator will be given its intended effect.
"so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved"( CILFIT Srl v Ministry of Health (Case 283/81)  ECR 3415, para 16).
The well-known principles are stated in CILFIT and were reiterated in Junk v Kühnel (Case C-188/03)  ECR I-885.
(i). before coming to such a conclusion, the national court or tribunal "must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice" (para 16),
(ii). "the existence of such a possibility must be assessed on the basis of the characteristic features of Community law and the particular difficulties to which its interpretation gives rise" (para 17),
(iii). "To begin with, it must be borne in mind that Community legislation is drafted in several languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions" (para 18),
(iv). "It must also be borne in mind, even where the different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States" (para 19).
The Court concluded with a more general observation about the principles according to which it will interpret European legislation:
"Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied." (para 20)
"In the event of discrepancy, real or apprehended, the court will therefore have recourse to all versions, within the context of the purpose and general scheme of the rules of which they form part, in order to determine their correct (and uniform) meaning. To assist it will also have recourse to travaux préparatoires (of legislation – none exists for the Treaties) to a much greater extent than is normally the case in national law. For these reasons, a literal interpretation of Union law texts is inappropriate." (para 6.24)
The SEA Directive
"AG18 Neither the original Commission proposal [COM(96) 511 final, December 4, 1996] nor an amended version of it [COM(1999) 73 final, February 22, 1999] included the condition that the plans and programmes covered must be required by law. After the proposal proved unsuccessful in this regard, the Commission, supported by Belgium and Denmark, proposed that the directive should at least apply to plans and programmes 'which are provided for in legislation or based on regulatory or administrative provisions'. [Council document 13800/99, December 8 1999, p.5]. The legislature did not take up those proposals either, however.
AG19 Instead, the Council explained the rules that were eventually adopted, to which the Parliament did not object …."
The EIA Directive
(i). The legislature must have "available to it information equivalent to that which would be submitted to the competent authority in an ordinary [planning] procedure"- meaning that the minimum information to be supplied must be "in accordance with article 5(2) of Directive 85/337/EC and Annex III thereto" (after the amendments made by Directive 2003/35/EC, these provisions became article 5(3) and Annex IV): Luxembourg v Linster, at paras 54 and 55, Boxus v Région Wallonne Cases C-128/09-C-131/09, C-134/09 and C-135/09,  Env LR 14, at paras 41-43, Solvay v Région Wallonne Case C-182/10,  Env LR 27, at para 37, Nomarchiaki at para 85.
(ii). "[T]he legislative act adopting a project must include, like a development consent … all the elements of the project relevant to the environmental impact assessment": Boxus, , Solvay, , Nomarchiaki, .
(iii). The national court must be able to verify that such conditions have been satisfied, taking account both of the content of the legislative act adopted and of the entire legislative process, which led to its adoption, in particular the preparatory documents and parliamentary debates: Boxus, [at paras 47and 48, Solvay, at para 59, Nomarchiaki, at para 90.
(iv). According to the Fourth Chamber in Solvay, at paras 53 and 59-61, it follows that "all the reasons for [the] adoption" of the relevant legislative act must either be contained in it or communicated separately.
" Whereas general principles for the assessment of environmental effects should be introduced with a view to supplementing and coordinating development consent procedures governing public and private projects likely to have a major effect on the environment;
 Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;
 Whereas the principles of the assessment of environmental effects should be harmonized, in particular with reference to the projects which should be subject to assessment, the main obligations of the developers and the content of the assessment;
 Whereas projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment;
 Whereas, however, this Directive should not be applied to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process;
 Whereas, furthermore, it may be appropriate in exceptional cases to exempt a specific project from the assessment procedures laid down by this Directive, subject to appropriate information being supplied to the Commission,
1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.
5. This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this Directive, including that of supplying information, are achieved through the legislative process.
3. Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive."
Article 1(5) gives effect to the eleventh and article 2(3) to the twelfth recital. A materially identical position exists under the EIA Directive, in which article 1(4) gives effect to recital (22), while article 2(4) gives effect to recital (23).
"AG62 Neither reading is without its drawbacks. The first might unduly widen the scope of the legislative exclusion from a directive which aims to ensure better decision-making in environmental matters. The consequence might be that, even where an administrative project was clothed in the flimsiest of legislative cloaks, the exclusion would none the less apply. The second interpretation might involve a degree of judicial activism which could lead to confusion as to the exact duties of the legislature in environmental cases. In its most extreme form, it might render the exclusion itself virtually meaningless by requiring the legislature to meet all the same procedural requirements as an administrative authority."
"appear[ed] clearly to favour construing article 1(5) as containing a prior condition that the objectives of the EIA Directive must be achieved by the legislative process, rather than a presumption that they are so achieved".
The Court in its Grand Chamber in Boxus endorsed this without further discussion, feeding in the express requirement of judicial review of "the entire legislative process" (paras 37-48). The most recent decision, Solvay v Région Wallone, reiterates this position.
"Effective judicial review, which must be able to cover the legality of the reasons for the contested decision, presupposes in general that the court to which the matter is referred may require the competent authority to notify its reasons."
"[I]n his Commentaries on the Laws of England, 17th ed (1814), vol 1, Bk 1, chap 2, p 175, under reference to Coke's Institutes, Blackstone says that the whole of the law and custom of Parliament has its original from this one maxim: 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.'"
"I cannot but express my surprise that such a notion should ever have prevailed. There is no foundation whatever for it. All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages …"