European Union
Environmental Impact Assessments, Civil, Forests, Permits, Evidence, Public Participation
This case was a reference from the Court of Appeal concerning the need for reasons for negative screening decisions under the EIA Directive i.e. decisions that a project does not need to be the subject of an EIA. The Secretary of State’s negative screening decision was recorded in a letter dated 4 December 2006 as being that the proposed development 'would not be likely to have significant effect on the environment by virtue of factors such as its nature, size and location'. The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 Sch.2 para.13 column 2 (“the EIA Regulations”) do not require reasons for a negative screening decision. In direct contrast under reg. 4(6) of the 1999 Regulations where a positive screening decision is given i.e. that development is EIA development there is an express duty to give “a written statement giving precisely and clearly the full reasons for that conclusion”. This would suggest that the drafter of the 1999 Regulations made a deliberate choice not to require the giving of reasons for negative, as opposed to positive, screening decisions under reg. Moreover, there is not much in the EIA Directive itself that supports any requirement for reasons for negative screening decisions. Article 4 makes no reference to a need to provide reasons in determining whether EIA is required. The questions referred by the Court of Appeal were: i. Whether under Article 4 the EIA Directive Member States must make available to the public reasons for a negative screening decision? ii. If the answer to Question i. is in the affirmative whether that requirement was satisfied by the content of the letter dated 4 December 2006 from the Secretary of State? iii. If the answer to Question ii. is in the negative, what is the extent of the requirement to give reasons in this context? The ECJ answered those questions thus: “1. Article 4 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, must be interpreted as not requiring that a determination, that it is unnecessary to subject a project falling within Annex II to that directive to an environmental impact assessment, should itself contain the reasons for the competent authority’s decision that the latter was unnecessary. However, if an interested party so requests, the competent administrative authority is obliged to communicate to him the reasons for the determination or the relevant information and documents in response to the request made. 2. If a determination of a Member State not to subject a project, falling within Annex II to Directive 85/337 as amended by Directive 2003/35, to an environmental impact assessment in accordance with Articles 5 to 10 of that directive, states the reasons on which it is based, that determination is sufficiently reasoned where the reasons which it contains, added to factors which have already been brought to the attention of interested parties, and supplemented by any necessary additional information which the competent national administration is required to provide to those interested parties at their request, can enable them to decide whether to appeal against that decision.” Accordingly, the effect of the judgment is that: i. there is no need for a negative screening decision to itself contain reasons; ii. but there is a duty to provide further information on the reasons for the decision if an interested person subsequently requests the same; iii. that request need not be met by a formal statement of reasons but also by providing “information and relevant documents”; iv. reasons, when given, can be very short.