Mellor, R (on the application of) v Secretary of State for Communities and Local Government

There is before the court an appeal from the decision of Owen J, who refused an application to move for judicial review and, in relation to which, permission to appeal to this court was given by Auld LJ. Before any full appeal has been heard, there has been an application to refer certain questions to the European Court of Justice.

These proceedings are concerned with screening decisions as to whether environmental impact assessment is required of applications for development consent for projects falling within annexe 2 of Council Directive 85/337/EEC as amended by 97/11/EC and 2003/35/EC. In the present case, the Secretary of State determined that environmental impact assessment was not required on a planning application for a medium secure hospital unit at HMS Forest Moor, Menwith Hill Road, Harrogate, North Yorkshire. The issues which arise are whether the Secretary of State was required to give reasons for deciding that environmental impact assessment was not required, and, if so, whether her decision provided adequate reasons.

It is for the court to refer questions and make a reference, but the parties have helpfully produced a draft containing the questions, which the parties wish to refer to the European Court. Furthermore, the parties have set out in the draft agreed facts. The draft reference helpfully contains references to the national law, references to national regulations and EEC regulations by reference to which the questions they seek to be decided by the European Court should be decided and there is no need for me to set them all out.

Why, it may be asked, should there be a reference at this stage before a full appeal is heard? In this case, Owen J did not deliver a full reasoned judgment. Thus if a reference were made at this stage there would not be a fully reasoned judgment of the court in this country. It  must be unusual and require exceptional circumstances to refer the matter without such a     judgment.   

The circumstances relied on begin with the fact that the English Court of Appeal in R v Secretary of State for the Environment, Transport and the Regions ex p Marson [1998] Env LR 761 expressed the opinion that, under the directives then in play, the Secretary of State was not obliged to give reasons either as a matter of national law or as a matter of EEC law. In the lead judgment of Pill LJ, he referred to the directives that are now in play and expressed the view that his opinion would not be altered if he were considering the new terms.

That decision of the Court of Appeal was a decision refusing permission to appeal, and as a matter of English law the decision is thus not binding on this court as such. But it was clearly a judgment carefully reasoned and carefully thought out. It was a judgment which was intended from its terms to be one which would guide persons who sought to challenge decisions of the Secretary of State by reference to the question of whether the decision of the Secretary of State was fully reasoned. It would certainly thus be a decision to which this court would have to pay very special regard. Although technically this court could disagree with the decision -- it would be reluctant to do so.

In addition, there is at present, as we are informed, a complaint being made by the Commission relating to the Court of Appeal’s decision in Marson and, as it is understood as between the parties and as we are thus informed, the Commission are in the process of bringing that matter before the European Court of Justice under Article 226(2) of the Treaty. It is right to add that there have been decisions of the European Court since Marson where there have been expressions of opinion which could be construed as indicating that under European law the present view is that reasons should be given.

The position of both parties before us is that they would seek to refer the question to the European Court of Justice as to whether the Secretary of State was obliged to give reasons at this stage for the following reasons; first because the answer to that question turns on European legislation; second because it is not precisely clear what European law has been said to be since the decision in Marson; third, because Marson has stood as good law here for some years and this court may be reluctant not to follow it; and fourth because proceedings are now being taken in the European Court of Justice relating to Marson. So it is said it would be convenient for the European Court to decide the issue in these proceedings at the same time as the issues in the enforcement proceedings proceedings. It is further said that because of the position in which Marson places this court, it is both desirable and necessary that the European Court should express a view on the European legislation at this stage, so as to provide a clear answer to the question as to whether reasons should be given for the Secretary of State’s decision.

I, for my part, am persuaded that, in the unusual circumstances of this case, it would be appropriate to refer that question to the European Court of Justice at this stage. It is both convenient and necessary that this question should be answered by reference to European law. It is certainly something which needs to be decided sooner rather than later.

So far as the questions are concerned, they have been identified in the draft reference and with the amendment that we agreed with counsel before I commenced this judgment to question 3 those are the questions which I would refer to the European Court of Justice at this stage.

I agree. I would like to add some supplementary observations. Waller LJ has explained that while Marson is not binding it is a highly persuasive authority. I should say that the question whether this court would follow it in the particular circumstances of this case -- having regard to the developments in the jurisprudence of the Court of Justice of the European Communities (“the Court of Justice”) and in view of the amendments to the directives and the regulations then under consideration -- has not been fully argued and I would express no view on that question. Leaving that point aside, the question as to the need for reasons for declining to have an environmental impact assessment depends on the interpretation of Directive 85/337/EEC and so is fundamentally a question of the law. As such, it involves a question of judgment as to whether a gap in the directive should be filled by interpretation, as there is no actual requirement which deals with reasons in these circumstances. That question of interpretation in turn involves a question of policy, which involves a question on which other member states may have different views. There is also the prospect, as my Lord has said, of potential infringement proceedings to which these proceedings might be linked, if The Court of Justice thought fit. The Court of Justice can come to a conclusion on the question of interpretation, much better informed as to the policy considerations throughout the Community than this court can. Indeed it might be difficult, in the light of the authorities, for this court to come to the matter wholly afresh. In those very special circumstances I agree that it is appropriate at this stage for this court to refer the questions to which my Lord has referred to the Court of Justice.

I agree with both judgments.