Berkeley v Secretary of State For The Environment and Others: HL 11 May 2000

The claimant challenged the grant of planning permission for a new football ground for Fulham Football club, saying that an Environmental Impact Assessment had not been obtained, but was required.
Held: Where a planning application if completed would have a substantial effect on the environment, and an environmental impact assessment should have been first obtained, it was not possible to dispense with that assessment and to deem it to have been supplied where it was thought that the assessment would make no difference, or that the authority or secretary of state in fact had all the information which would have been provided. The Directive prescribed a particular procedure which was to be followed. In the absence of at least substantial compliance, the court should not exercise its discretion to validate retrospectively a breach of the Directive, even if satisfied that the result would have been the same.
Lord Bingham set out the Court’s discretion: ‘Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by article 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case.’
Lord Hoffmann said: ‘A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. Although section 288(5)(b), in providing that the court ‘may’ quash an ultra vires planning decision, clearly confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom’s obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P and CR 343, 353. [Counsel for the Respondent] was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planning permission in this case to be upheld.’


Lord Hoffmann, Lord Bingham


Times 07-Jul-2000, [2000] 3 WLR 420, [2001] 2 AC 603, [2000] UKHL 36, [2000] 3 All ER 897


House of Lords, House of Lords, Bailii


Council Directive 85/337/EEC, Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (1988 No 1199), Town and Country Planning Act 1990 288(5)


England and Wales


At First InstanceDido Berkeley v Secretary of State for Environment Admn 26-Mar-1997
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Cited by:

CitedBarker v London Borough of Bromley Admn 23-Nov-2001
The claimant challenged the grant of outline permission to develop the Crystal Palace, arguing that no Environmental Assessment had taken place. The need for one depended upon whether the directive had been properly incorporated into English Law. . .
CitedBown v Secretary of State for Transport CA 31-Jul-2003
The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .
CitedYounger Homes (Northern) Ltd v First Secretary of State and Another Admn 26-Nov-2003
The claimant sought to quash a planning decision on the basis that a screening decision had not been made.
Held: Though the procedures within the authority could have been bettered, there was no formal requirement for a screening option to . .
CitedPascoe v First Secretary of State and others Admn 27-Sep-2006
The claimant challenged a compulsory purchase order made under the 1993 Act on the grounds of underuse of properties in the area.
Held: The respondent’s decision had been made on the basis that there was underuse of a ‘predominant number’ of . .
CitedRegina v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) QBD 31-Jul-2000
Developers submitted applications for outline permission for the development of a business park. The applicant sought to quash the grant on the basis that the environmental assessment was insufficiently detailed, and contained reserved matters, and . .
CitedEdwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
CitedBoggis and Another v Natural England CA 20-Oct-2009
Natural England appealed against the quashing of an SSSI.
Held: The notification of an SSSI was not the making of a plan as respects the land affected, but the flagging up of it. The real purpose of the proceedings was to allow the land owners . .
CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
CitedBaker v Police Appeals Tribunal Admn 27-Mar-2013
The claimant a former police constable sought judicial review of a decision made by the tribunal, saying that it had had no jurisdiction to make it. The respondent tribunal, having now accepted that it had not had the power it exercised, being then . .
CitedChampion, Regina (on The Application of) v North Norfolk District Council and Another SC 22-Jul-2015
‘The appeal concerns a proposed development by Crisp Maltings Group Ltd (‘CMGL’) at their Great Ryburgh plant in Norfolk, in the area of the North Norfolk District Council (‘the council’). It was opposed by the appellant, Mr Matthew Champion, a . .
CitedDover District Council v CPRE Kent SC 6-Dec-2017
‘When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a . .
Lists of cited by and citing cases may be incomplete.

Environment, Planning, Administrative

Updated: 23 May 2022; Ref: scu.135054