Cooper v HM Attorney General

This is the judgment of the Court.

In 2003, in Case C-224/01 Köbler v Republik Ősterreich [2003] ECR 1-10239, the Court of Justice of the European Communities (now the Court of Justice of the European Union) (“the Court of Justice”) created a new form of member state liability for violations of Community law. It held that a member state could be liable in damages for a serious breach of Community law on the part of a national court of final appeal. The present case, which is an appeal from the order of Plender J dated 30 September 2008, determining certain preliminary issues on liability against the claimant, Mr Stephen Cooper, is the first case in which this court has had to consider this new and sometimes controversial form of member state liability, referred to below as “Köbler liability”. This may indeed be the first time that Köbler liability has been considered by an appellate court in a common law jurisdiction.

We will reserve to section 2 of this judgment further consideration of the nature of Köbler liability. It is sufficient at this stage to note that the Court of Justice held that there are three conditions to Köbler liability:

The alleged breach of Community law must be of a rule conferring rights on individuals.

The breach must be "sufficiently serious".

There must be a direct causal link between the breach and the loss or damage sustained by the claimant.

As further explained below, to determine whether a breach was “sufficiently serious”, the court must consider all the circumstances. We have been asked to take into account the arguments that were placed before the courts on the occasions on which Mr Cooper contends that Köbler liability was incurred. We do not have verbatim transcripts of the oral arguments presented to the court but we have been referred to the parties’ skeleton arguments. We also have the benefit of detailed notes taken by Mr Richard Buxton, solicitor for the then claimant, The Council for the Protection of Rural England (referred to below as “CPRE”) and now for Mr Cooper, during the course of the relevant hearings.

We will in general refer to Community law as opposed to European Union law notwithstanding that this appeal was heard following the coming into force of the Lisbon Treaty. We will also refer to the provisions of the EC Treaty rather than to those of the treaties in force after the approval of the Lisbon Treaty, as those were the provisions in force at the time of the impugned decisions (as defined in the next paragraph).

The claims in these proceedings are based on two decisions of this court (“the impugned decisions”) in its capacity as a court of final appeal for England and Wales. The context in each case was a challenge to decisions made by The London Borough of Hammersmith and Fulham (“Hammersmith and Fulham”) about a large development in London (“the White City development”) with reference to the application to that development of the Environmental Impact Assessment Directive (Directive 85/337) (“the EIA Directive”) and the domestic implementing legislation. The complaints made by CPRE stemmed from its contention that Hammersmith and Fulham’s decision taken before the grant of the outline planning permission that an Environmental Assessment (“EA”) was not required was not taken by a duly authorised officer of Hammersmith and Fulham. In the first impugned decision, R v London Borough of Hammersmith and Fulham, ex parte Trustees of the CPRE (London Branch) (2001) 81 P & CR 73 (Swinton Thomas, May LJJ and Singer J), the decision was made on a renewed application for judicial review and there is no appeal from a decision refusing such an application (see R (o/a Eastaway) v Secretary of State for Trade and Industry [2000] 1 WLR 2222). The second impugned decision, R v London Borough of Hammersmith and Fulham, ex parte Trustees of the CPRE (London Branch) (Ward LJ and Bell J) 12 June 2000, unreported, was made on an application for permission to appeal from the High Court of Justice to this court, from which likewise there is no appeal. Mr Cooper claims that the impugned decisions met all the conditions for Köbler liability and caused him loss in the form of adverse orders for costs, but we are not concerned with the third condition to liability as the only questions which the judge at first instance had to deal with were two preliminary issues designed to identify the errors of Community law which had been made and whether those errors were sufficiently serious to give rise to Köbler liability.

Mr Cooper is represented on this appeal by Mr Robert McCracken QC and Miss Emma Dixon. The Attorney General is represented on this appeal by Mr James Eadie QC and Mr James Maurici.

Reference is made below to Article 10 and Article 234 of the EC Treaty (now Articles 4(3) and 267 of the Treaty on the Functioning of the European Union).

Article 10 provided that:

Article 234 provided that the Court of Justice has jurisdiction to give preliminary rulings concerning the interpretation of directives of the Community where the national court considered that a decision on the question was necessary for it to give judgment and the question was not acte clair. Importantly Article 234 imposed an obligation on a court of final appeal to request a preliminary ruling in those circumstances.

The EIA Directive embodies and promotes far-reaching and highly significant aims. It is a “fundamental instrument” of the European Union’s environmental policy: R. v London Borough of Bromley, ex parte Barker [2007] 1 AC 470, 474C per Lord Hope. The Court of Justice has held that “[t]he wording of the [EIA] Directive indicates that it has a wide scope and a broad purpose” (see, for example Kraaijeveld v Gedeputeerde Staten van Zuid Holland [1996] ECR 1-5403 at [31]).

The question of the need for an EA is not a mere technical issue, such as, for instance, a question about the correctness of a customs classification. There is no doubt but that the EIA Directive regulates an important area of life for the European Union, namely the conditions which must be fulfilled to protect the environment if there is development. As Mr McCracken submits, the EIA Directive is an important piece of legislation.

Moreover one of the aims of the EIA Directive is to bring direct public participation into decision-making where those decisions may have significant environmental effects. As Lord Hoffmann said in Berkeley v Secretary of State for the Environment and another [2001] 2 AC 603 at 615:

Accordingly, public and democratic participation is an aim of the EIA process in its own right, and is to be treated as intrinsically valuable, over and above its contribution to informed decision-making. The European Court of Human Rights has also recognised that a person has a right under article 8 of the European Convention on Human Rights to be provided with information on environmental issues as this enables him to assess the risk to him of some proposed activity which may be harmful to him (see, for example, McGinley and Egan v United Kingdom [2000] ECHR 21825/93).

The EIA Directive specifies the cases in which an EA must be required by a planning authority before it gives “development consent”, defined in Article 1(2) of the EIA Directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. (The EIA Directive was later amended by directives 97/11/EC and 2003/35/EEC, with which we are not concerned.) Article 2(1) provides:

Under the EIA Directive, if a project is “likely to have significant effects on the environment by virtue, inter alia, of [its] nature, size or location”, then (a) in the circumstances set out in Article 4(1) of, and Annex 1 to, the EIA Directive, there is a mandatory requirement for an EA before development consent is given; and (b), in other circumstances, set out in Article 4(2) of, and Annex II to, the EIA Directive, the planning authority has to consider whether to require an EA on a case by case basis or in accordance with thresholds or criteria set by the member state. The White City development constituted an "urban development project" for the purposes of paragraph 10 of Annex II. It was therefore a matter for the judgment of the decision-maker whether the development was one for which an EA was required: R(Goodman) v Lewisham LBC [2003] Env LR 28.

The regulations transposing the EIA Directive into domestic law, namely, the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (“the 1988 regulations”), transposed the term “development consent” by adopting a definition that in effect limited development consent to outline planning permission.

In Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR 1-723, the Court of Justice held, in relation to conditions required to be fulfilled for the purpose of validating an old mining permission (that is, a mining permission deemed to have been granted under Part III of the Town and Country Planning Act 1947 and subjected in 1991 to the consideration of further conditions), that projects likely to have significant effects on the environment must be made subject to an assessment with regard to their effects before approval of the conditions. This decision of the Court of Justice accordingly made it clear that, in some circumstances at least, a planning authority must consider whether an EA is required in connection with the subsequent stage of approval of conditions. We refer further to Wells below.

In 2003, the European Commission (“the Commission”) brought infringement proceedings against the United Kingdom arising out of (inter alia) the White City development. One of the complaints was that Hammersmith and Fulham’s failure to carry out an EA with respect to the White City development constituted a breach of the EIA Directive. This complaint was dismissed for lack of evidence. We reject the submission of Mr Eadie in his skeleton argument (which he accepted in his oral submissions may have gone too far on this point) that the Court of Justice ruled that there was no non-compliance with the EIA Directive at the outline planning permission stage. However, a further complaint was upheld that the 1988 regulations had not correctly transposed the EIA Directive because they did not provide for an EA to be carried out subsequently to the grant of outline planning permission (Commission v United Kingdom [2006] ECR 1-3969). The United Kingdom had thus failed to fulfil its obligations by incorrectly transposing Articles 2 (1) and article 4 (2) of the EIA Directive into domestic law. However, the court held that where national law provided for a principal decision and a subsequent implementing decision that could not expand the parameters set by the principal decision, the effects on the environment of the project had to be identified and assessed at the time of the principal decision. It was only if those effects were not identifiable at the time of the principal decision that the assessment should be carried out as part of the implementing decision.

The Court of Justice applied its decision in Commission v United Kingdom in R (o/a Barker) v Bromley LBC [2006] QB 764 in which it answered a request by the House of Lords for a preliminary ruling. When the case returned to the House of Lords, Lord Hope, with whom the other members of the House agreed, made it clear that an EA might be required at the reserved matters stage for a number of reasons, for example, because the need for an EA had been overlooked at the outline planning permission stage (R (Barker) v Bromley LBC [2007] 1 AC 470 at [24]).

In the light of Barker, we do not accept the submission of Mr Eadie that the only circumstances in which an EA might be required, if not required at the outline planning permission stage, is if the environmental effects of the development were not identifiable at the outline planning permission stage.

Two other decisions of the Court of Justice should be noted at this stage. First, in Case C-72/95 Aannemersbedrijf P K Kraaijeveld BV and others v Gedeputeerde Staten van Zuid-Holland [1996] ECR 1-5403, the Court of Justice held that, on its true construction, the EIA Directive applied to the approval of modifications to projects in Annex II to the EIA Directive even though that Annex made no express reference to modifications. The Court of Justice also held in Kraaijeveld that the EIA Directive was directly enforceable by individuals. In addition it made observations about the obligations of courts, which were empowered to take points of their own motion. We will refer to this point below.

Secondly, Mr Cooper also relies on WWF v Bozen [1999] ECR-5613 as enabling an individual to assert that an administrative body in a member state has exceeded its powers under the EIA Directive, and as requiring organs in a member state to take all necessary measures to ensure that consideration is given to the need for an EA and the setting aside of national measures incompatible with the provisions of the EIA Directive.

Mr Cooper was at all material times a trustee of the London branch of CPRE. He is now solely entitled to bring this claim.

The White City development was the redevelopment of a substantial site (“the Site”) in White City/Shepherd’s Bush, London, which was subsequently redeveloped as the Westfield London Shopping Centre, said to be the largest shopping mall in Europe at the time. The challenge brought by CPRE related to the question whether there had been compliance at various points with the requirement as a matter of Community law to obtain an EA. The planning history prior to the challenge made by CPRE was as follows:

21 September 1994: the Environment Committee of Hammersmith and Fulham decided to grant outline planning permission (subject to completion of an agreement under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”)) for the White City development.

20 March 1996: Hammersmith and Fulham formally granted outline planning permission for the White City development.

October 1997: applications were made for approval of reserved matters including the main shopping centre, car parking and bus station, highway works, leisure uses and demolition and construction strategy.

August 1999: the developer submitted a voluntary environmental impact assessment for the purposes of the reserved matters application.

CPRE started its proceedings by Form 86A (the form then used for initiating judicial review proceedings) dated 11 October 1999, amended on 1st November 1999. It sought permission to re-amend on 14 December 1999. It is to be noted that CPRE did not contend that it would have been irrational for Hammersmith and Fulham to decide that an EA was not required. CPRE contended that the procedures required by the EIA Directive had not been followed. At the time of the commencement of the proceedings, Hammersmith and Fulham had not approved the reserved matters.

Significantly for the purposes of this case, (1) Hammersmith and Fulham did not require a formal EA in connection with the application for outline planning permission; (2) on the subsequent application at the reserved matters stage there was also an application under s 73 of the 1990 Act for the approval of modifications to the original planning permission; (3) Hammersmith and Fulham made it clear by correspondence at the reserved matters stage (letter dated 13 August 1999) that they would only consider the impact on the environment of the reserved matters at the reserved matters stage, not the impact on the environment of the grant of permission in principle; (4) it is common ground that the voluntary environmental impact assessment delivered by the developer did not meet the requirements of the EIA Directive; (5) Hammersmith and Fulham considered that CPRE’s request, by letter dated 13 September 1999 from its solicitor, Richard Buxton, that Hammersmith and Fulham should consider revoking the planning permission "in reality [bore] no critical examination.” Hammersmith and Fulham expressed the view in a letter dated 28 September 1999 that "none of [its] duties under the EC Treaty require or justify such action." and (6) CPRE’s challenge was brought some three and a half years after the grant of outline planning permission. By that date, the developer had spent some £70 million on acquiring land and had made a rights issue in excess of £100m for the purposes of the development. The Secretary of State made transport orders authorising the construction of access roads; the developer had agreed to meet the cost of carrying out this work to an estimated value of £60 million and had commenced this work.

The grounds for seeking judicial review in the Form 86A consisted of three parts.

Firstly, CPRE contended that there was a procedural irregularity in the decision of Hammersmith and Fulham to dispense with an EA when it granted outline planning permission in that the relevant officers did not have the requisite authority (“the outline permission challenge”). Accordingly there had been no valid consideration of this issue. This was a breach of both domestic and Community law. Reliance was placed on then recent domestic case law that made it clear that scale would not be considered at reserved matters stage and so the question of an EA had to be considered at the original planning permission stage and could not be considered subsequently. However it was common ground that development could not be started until the reserved matters approval had been granted.

Secondly, CPRE argued that Hammersmith and Fulham could not grant reserved matters approval without considering whether to require an EA at that stage (“the reserved matters challenge”). This would include the consideration of the question whether to require the EA that ought to have been carried out at the outline planning stage.

Thirdly, CPRE submitted that the refusal of Hammersmith and Fulham to consider revocation of the outline planning permission already granted because of the absence of an EA was also unlawful (“the revocation challenge”). In deciding whether to exercise its statutory power under s 97 of the 1990 Act to revoke a planning permission, a local authority has to disregard any financial liability which it might incur from revocation (see per Richards J in Alnwick DC v Secretary of State for the Environment, Transport and the Regions [1999] 4 PLR 43).

The Form 86A contended that the term “development consent” in the EIA Directive included the reserved matters (“the development consent point”):

It also made what we will call “the Article 10 point”:

The Article 10 point was amplified and the submission made that, if domestic law did not require an EA when the EIA Directive required it, that could not justify the failure to take measures to obviate or nullify the consequences of breaches of Community law. This included revocation of the original planning permission. This point would arise only if the court took the view that conforming interpretation was not possible.

Furthermore, the EIA Directive applied to emanations of the state, such as Hammersmith and Fulham. Reliance was placed on the Court’s obligation to interpret the 1988 regulations in conformity with Community law (“the conforming interpretation point”). In any event in CPRE’s submission the EIA Directive was directly effective (“the direct effect point”):

The Form 86A also made “the reference point” in reliance on R v HM Customs & Excise ex parte Davies Products, 25 June 1991, unreported, that permission for judicial review should not be refused if there was a prospect of a reference to the Court of Justice for a preliminary ruling. It specifically submitted that permission should be given and a reference made if the Court had any doubt as to the Community law issues raised. The point was made that no work had been started on the development.

CPRE’s skeleton argument for the hearing of the application for permission to bring judicial review proceedings, which was heard by Richards J, focused on the requirements of the EIA Directive. It made the development consent point, the Article 10 point, the reference point and the point about delay. Richards J refused the outline permission challenge on the grounds that it had not been brought within the time limits required by RSC Ord 53. He also refused permission in respect of the reserved matters challenge, viewing this as essentially an attempt to attack the original planning permission, which was now out of time, applying the judgment of Laws J (as he then was) in R v Secretary of State for Trade and Industry ex parte Greenpeace [1998] Env LR 415). Laws J held:

We refer to this point below as “the Greenpeace principle”. However, Richards J granted permission to bring judicial review proceedings in respect of the refusal to revoke the outline planning permission. The impugned decisions, to which we now turn, were made as a result of the decision of Richards J.

CPRE renewed its application for permission to bring judicial review proceedings in respect of the outline permission challenge and the reserved matters challenge in this court, which dismissed that application on 21 December 1999.

On 14 December 1999, the first day of the hearing in this court, CPRE sought to re-amend its Form 86A to challenge the modifications to the outline planning permission sought by the developers under s 73 of the 1990 Act which it argued gave rise to a fresh obligation to consider whether an EA was required in respect of the reserved matters decision without which that decision was unlawful. The relevant amendments stated:

CPRE’s skeleton argument for the appeal to this court, also dated 14 December 1999, which must be read with the Form 86A, also made the point that the modifications to the outline planning permission in themselves required a formal EA. This point was made briefly in the following terms which did not link it to the decision in Kraaijeveld or to the EIA Directive:

By the time of the hearing Hammersmith and Fulham had resolved to approve the reserved matters (although the approval had not yet been formally granted) and so the relief sought was amended to include:

Singer J gave the first judgment, with which the other members of this court agreed. This court rejected the application for permission to bring judicial review proceedings in respect of the grant of the outline planning permission because there was no real explanation for the delay of 42 months between the grant of outline planning permission and the issue of proceedings. There was a question of substantial prejudice to the developer, which had purchased parts of the site and had entered into contracts for works, including highway works to the value of £16 million. The rejection of the challenge to the outline planning permission is not pursued in these proceedings and so Mr McCracken has not sought to challenge this court’s conclusion on this point.

Singer J also considered that the submission that Hammersmith and Fulham was not entitled to consider the approval of reserved matters in the absence of an EA was unarguable. In expressing that conclusion, he held that the development consent point was unarguable on the basis of the way it had been transposed into domestic law and interpreted by Lord Hoffmann in R v North Yorkshire County Council ex parte Brown [2000] 1 AC 397, a decision of 11 February 1999 which by the time of the hearing was reported at [1999] 2 WLR 452. The relevant passage of Lord Hoffmann’s speech is set out below at paragraph 108. He held that the wording of the 1988 regulations seemed to militate against the position adopted by the CPRE; for it would be necessary to construe the “application for planning permission” as extending to the decision at the reserved matters stage, but as excluding the application for outline permission. On that basis there was no room for CPRE's claim that Hammersmith and Fulham could not proceed to approve reserved matters without considering whether an EA was required. Singer J did not therefore deal with the direct effect point. He held that CPRE’s argument on development consent would turn English planning law on its head. He did not in terms consider whether this court should request a preliminary ruling from the Court of Justice. Singer J held there was no obligation to have an EA at the reserved matters stage and, “that being so”, he agreed with the Greenpeace principle.

As to the modifications, Singer J held that a s 73 application was expressly excluded from the definitions in the 1988 regulations of both schedule 1 and schedule 2 applications (the schedules replicating the annexes to the EIA Directive) and so there could have been no requirement for an EA. No consideration was given to the EIA Directive.

Also on 21 December 1999, Harrison J gave judgment rejecting the revocation challenge. The principal ground of his decision was that, applying a passage from the judgment of Schiemann LJ in Marks & Spencer v CIR [2000] STC 16, as there was no challenge to the correctness of the transposition of the EIA Directive into domestic law, an individual could not sue for breach of his rights under it. He thus rejected the Article 10 point which had been one of CPRE’s submissions made to him.

CPRE applied for permission to appeal to this court but its application was dismissed (Ward LJ and Bell J) on 12 June 2000. That decision constitutes the second impugned decision.

Two skeleton arguments were filed on behalf of CPRE in connection with this application. It is sufficient to set out passages from the first skeleton argument (the second skeleton argument inter alia set out the grounds for an application for an adjournment, which was refused and with which we are not concerned). The Article 10 point was put at the forefront of CPRE’s case in the first skeleton argument:

The skeleton addressed the principal ground of the judgment of Harrison J;

“NoA 1: The Marks and Spencer case is not relevant to this case. There the Court of Appeal held that where a directive has been properly implemented in domestic law, then one cannot found a claim under the directive itself. That is entirely different from precluding a member of the public from reminding, as the CPRE did here, an organ of the member state of its duties under the law. It is submitted that it would be wholly wrong to shut out an applicant from founding a claim in circumstances such as this for drawing the member state’s attention to duties under the EC Treaty when it might, in a more involved fashion, have referred to the member state’s failure to have compiled with the 1988 Regulations, its consequent duty to rectify that failure, and that duty stemming from a Treaty duty. It is respectfully submitted that Harrison J was wrong to say that because CPRE’s request to revoke was based on Article 10 of the Treaty, the member state was entitled to refuse that request.

NoA 2 and 4: The High Court had a duty (see Bozen) to examine whether there should have been an EA in this case, or at a minimum whether the [Hammersmith and Fulham] took a decision correctly that that was not.

NoA 3: it is submitted that (a) there is a clear distinction between revocation powers and powers of the court to quash. (b) In considering whether there is a duty to consider revocation, the question of time limits on judicial review are irrelevant…”

In the alternative, the skeleton argument sought a reference to the Court of Justice for a preliminary ruling on the following question:

The skeleton argument contended that the Article 10 point was not acte clair against CPRE, and that in those circumstances the court had a duty to grant permission to appeal, either to enable it simply to allow the appeal or, if it had any doubts, to make a reference (paragraph 43).

In an earlier passage in the skeleton argument (paragraph 19), CPRE contended that the court could only ignore the non-compliance with the EIA Directive if it was satisfied that it would have been irrational for Hammersmith and Fulham to hold that the project was a qualifying Schedule 2 project (which, by implication, could not be shown). As noted above, this point had not been advanced previously. The skeleton argument also sought to challenge the conclusion of this court in the first impugned decision that the meaning of “development consent” as including approval at the reserved matters stage was unarguable (paragraph 25). However, no reference was sought on the “development consent point”.

The main judgment was given by Ward LJ, with whom Bell J agreed. Ward LJ emphasised that no suggestion had been made that the 1988 Regulations did not fully and accurately transpose the EIA Directive and he rejected the main argument made by Mr Robert Jay QC for CPRE, namely the Article 10 point. He set out passages from the decisions of the Court of Justice in Kraaijeveld and Bozen, on which Mr Jay relied, but accepted the submission of Hammersmith and Fulham that in those cases the EIA Directive had been imperfectly transposed. Ward LJ found determinative a passage in the judgment of Schiemann LJ in Marks & Spencer v CIR in which he rejected the argument that where a directive was transposed an individual could enforce both rights under the directive and rights conferred by national legislation. Ward LJ rejected a submission that the matter was not acte clair and that there should accordingly be a reference to the Court of Justice for a preliminary ruling on the Article 10 point. In giving reasons for this, he relied on the fact that any claim in respect of the outline planning permission was now time-barred; he referred to the Greenpeace principle, and to a passage in the decision of the Court of Justice in Cobrecaf SA & Ors v Commission Case T514/93 to like effect:

In a letter dated 16 June 1999 to Mr Richard Buxton, the solicitor acting for CPRE, Mr Kremlis, Head of Unit at the directorate general for environment matters at the European Commission, expressed his own view that at first sight the national authorities are obliged to rectify deficiencies in the procedure at a later stage and that the steps which the national authorities might be obliged to take would include exercising the power to revoke the planning permission. Mr Kremlis referred to this letter in a subsequent letter dated 14 March 2000 in which he stated that time limits were in general a matter for the national court. Mr Buxton sent this letter to the court with a covering letter that made the point that this court would be a court of last instance for the purposes of Article 234 of the EC Treaty. Ward LJ referred to Mr Kremlis’s letter of 14 March 2000 in his judgment, stating that it did not purport to be the view of the Commission and that it did not persuade him that there was any doubt about the way the national court should apply Community law following transposition.

The present proceedings were commenced in December 2005. By order dated 18 June 2008, Cox J directed the trial of two preliminary issues:

In his careful judgment, the judge examined the background and the authorities on Köbler liability, and gave detailed reasons for answering the preliminary issues against the claimant. We need not examine all the reasons given by the judge as not all of them have been urged on us. With respect to the first impugned decision, the judge held that this court was wrong to confine the term “development consent” in the EIA Directive to the grant of outline planning permission but he held that error was not manifest, because (1) the conclusion was not inconsistent with Community law as at December 1999; (2) this court’s interpretation of the term “development consent" was used in the EIA Directive. He held that the interpretation accepted by the Court of Appeal was consistent with that put forward by the Commission in Commission v United Kingdom, and with Mr Kremlis’s view placed before this court prior to its second impugned decision. The judge also relied on an inference that he was prepared to draw that the United Kingdom disclosed its draft legislation to the Commission and received no objection from the Commission. The judge explained that any objection by the Commission would have been mentioned by the Court of Justice in Commission v United Kingdom.

As to the second impugned decision, the judge held that this court was in error with respect to the meaning of development consent, but that this was not a manifest error for the reasons previously given and because CPRE had not contended that there was any error of transposition. In addition, the error was not manifest because the outline planning permission could no longer be attacked. The judge held that in those circumstances Community law did not impose on the member states any duty of revocation. He held that, even when directives are correctly transposed, member states must ensure that they are applied correctly. The reliance placed by Ward LJ on the passage from the judgment of Schiemann LJ in the Marks and Spencer case seemed to the judge to do no more than invoke the incontrovertible proposition that, when the directive has been correctly transposed, the national court must turn its attention to the national implementing legislation, rather than the directive.

Member state liability in Community law is a mechanism for ensuring so far as possible compliance by member states with Community law in circumstances in which there is no right of appeal to the Court of Justice from decisions made in ordinary litigation in the member states. Köbler liability is only one form of member state liability for violations of Community law. A member state may be also liable in damages where it fails to implement a directive of the Community (Francovich v Italy, Bonifaci v Italy Joined cases C-6/90 and C-9/90 [1992] IRLR 84, ECJ) and again where the legislature of the member state adopts legislation which is inconsistent with Community law (Brasserie du Pêcheur SA v. Federal Republic of Germany, R v. Secretary of State for Transport ex parte Factortame Ltd and others Joined cases C-46/93 and C-48/93 [1996] IRLR 267). All these forms of member state liability are governed by the same conditions: see Köbler, paragraph 52.

Köbler liability has been much criticised. It has been criticised on the grounds that the imposition of such liability may lead to the reopening of issues that the decision of the court had brought to a close. In the nature of things many decisions depend on the judge’s assessment of, for example, the true meaning of a legislative provision. If liability is too liberally imposed, it could threaten the integrity of the legal system and the judicial process. The Court of Justice recognised these risks. It held that:

That conclusion provides an explanation for the fact that a person may claim damages where the national court has not observed Community law due to manifest error, but not where the error was excusable.

A further important criticism of Köbler liability is that it leads to the anomalous position that a trial court may be required to pass judgment on the correctness of a decision of a superior court: Advocate General Léger thought that this difficulty might be addressed by the court hearing the claim based on Köbler liability itself making a reference to the Court of Justice. But, if a reference is appropriate, this may be an indication that the breach was not manifest and that the second pre-condition was not met in any event. However, notwithstanding the various criticisms that have been made of Köbler liability, it is clear that this form of liability exists and that national courts must in appropriate cases enforce it.

The only other decision of the Court of Justice following Köbler to which we have been referred is Traghetti del Mediterraneo SpA v Italy Case C-173/03 [2006] ECR 5177 concerning the compatibility with Community law of a provision in Italian law limiting Köbler liability to cases where there had been an intentional breach of Community law or serious misconduct on the part of the court of last instance. The Court of Justice held that Köbler liability could not be limited to these situations. Manifest breach was the touchstone of liability under the second condition. However the Court of Justice did specifically take the opportunity to stress that Köbler liability was exceptional (paragraph 32).

There is little jurisprudence on Köbler liability. The judge considered at paragraphs 53 and 54 of his judgment the decision of the French Conseil D’Etat dated 19 May 2008 in Gestas on Köbler liability, but he did not deduce any new principle from it. The parties did not refer to it in their arguments on this appeal, and in those circumstances we make no further reference to it. We have not been referred to any other jurisprudence from other member states.

In Köbler the Court of Justice explained that there were three conditions for member state liability for the acts of national supreme courts.

As to the second condition, the Court of Justice held:

If the three conditions are fulfilled, it is the national law which must provide the remedy, subject to the principles of equivalence and effectiveness:

Accordingly, to determine whether the error was sufficiently serious, the court must consider whether it was manifest. The court must also take account of all the other relevant factors that characterise the case before it. These factors include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken (where applicable) by a Community institution and non-compliance by the court in question with its obligation to make a reference for preliminary ruling (Köbler, paragraph 55).

The breach is in any event sufficiently serious if it entails a “manifest breach” of the case law of the Court of Justice in the matter (Köbler, paragraph 56).

Basing himself on the Greek text of Köbler, Mr McCracken submits that “manifest” means “demonstrable”. We do not consider that it is necessary to use the Greek text for this. It is clear that for a breach to be manifest it must be evident that there is a breach. It may be evident that it is a breach because the Court of Justice has already decided the point or it may follow from the case law of the Court of Justice that a particular set of circumstances constitutes a breach. However, in our judgment, when in paragraph 56 of its judgment the Court of Justice refers to a breach of Community law being sufficiently serious if it is in “manifest breach” of its own case law, the Court did not intend to exclude from consideration the other factors “which characterise the situation”. That would be to treat a breach of the Court’s case law in a different way from other breaches of Community law, such as a breach of a Community regulation. Those other factors would be relevant to the question whether the breach was “manifest”. Accordingly, in determining whether Köbler liability arose from the national court's failure to apply some evident principle of the Court of Justice’s case law, the national court should have regard to all the factors which characterise the situation, including those listed in paragraph 55 of Köbler.

It is helpful to consider what is not a manifest breach. In our judgment, a breach is not manifest if the answer to the question before the court is not evident in the sense just given. It will also not be manifest if it represents the answer to which the court has come through undertaking a normal judicial function. Interpretation of Community legislation is part of the normal judicial function and liability would no longer be exceptional if it could arise whenever the interpretation was shown to be wrong - if only because the Court of Justice often adopts an innovative interpretation or one motivated by policy insights that would not be necessarily be available to the national court. There is in our judgment no member state liability simply because the national court arrives at the wrong answer: this is because “regard is [required to be] had to the specific nature of the judicial function”.

This point is shown by the facts of Köbler itself. The Supreme Administrative Court of Austria reached what it thought was the correct result in Professor Köbler’s case as to a matter of Community law by interpreting a decision of the Court of Justice. It had an even better than usual opportunity to obtain a ruling from the Court of Justice since it had already lodged a request for a ruling. However it wrongly persuaded itself that a subsequent ruling of the Court of Justice in another case provided the answer when it had not. Nonetheless Köbler liability was not established. The Court of Justice did not ask whether its interpretation was reasonable or not. Accordingly a failure to make a reference where a question is not acte clair does not automatically lead to Köbler liability, nor does the interpretation of prior case law result in the incurring of such liability, unless there is an obvious answer and there are no other mitigating circumstances. It must follow that the failure to make a reference because the court did not appreciate that the issue before it raised a question of Community law does not automatically result in Köbler liability unless it is obvious from Community law that there is a Community issue and an absence of mitigating circumstances. The observations of Advocate General Léger in his opinion in Traghetti that the failure to make a reference was itself inexcusable, on which Mr McCracken relies, is in our judgment inconsistent with the jurisprudence of the Court of Justice. The evaluation that a national court makes of a point of interpretation which it determines is acte clair is, moreover, an integral part of the normal judicial function of identifying the meaning of legislation.

There is a question of timing. In applying paragraph 56 of Köbler, it is self-evident that what must be considered is the case law of the Court of Justice as it stood at the time of the impugned decision of the national court, not at some subsequent date.

The relevant question under the second condition is whether the breaches were sufficiently serious. The court needs to examine all the relevant circumstances. It is appropriate to start by asking if the decision of the national court was in manifest breach of the case law of the Court of Justice. To determine whether there was a manifest breach of that case law, the court must examine all the factors “which characterise the situation". This entails a broad enquiry. Mr McCracken submits that it should exclude factors which relate to domestic law on the grounds that the introduction of purely domestic factors might distort results within the European Union. In our judgment, while the decision of a superior national court cannot excuse a breach of Community law by a court bound by its decision (see Case 166/73 Rheinmühlen-Düsseldorf [1974] ECR 33, paragraph 4), there is no basis for limiting the enquiry at this juncture in the way suggested. We also agree with Mr Eadie that the relevant factors include the facts of the case and that the issues do not have to be decided in a “factual vacuum”.

If the decision of the national court was not in manifest breach of the case law, it may have been in manifest breach of some legislative requirement of Community law. It has not, however, been argued in this case that the decisions were in manifest breach of the EIA Directive.

Because there are three conditions for Köbler liability, it is, in general, appropriate to adopt a structured approach to claims based on Köbler liability. The court should examine whether each condition is established in turn. The court should thus establish whether there is a breach of case law of the Court of Justice before considering whether the breach was “sufficiently serious” in the sense given in paragraphs 51 to 55 of Köbler.

That leads to the question: what errors of Community law are relevant? Although the first preliminary issue asks in this case what errors were made as a matter of Community law, in our judgment Köbler liability is only concerned with errors that were material for the purposes of that cause of action. The fact that other errors of Community law were made along the way is not relevant and gives rise to no claim. Thus, for example, the court’s failure to deal with an argument on direct effect would not be material unless there was some relevant right conferred by the EIA Directive that had not been transposed into domestic law which was appropriately enforced through direct effect. It is therefore sufficient to ask whether there was some relevant right conferred by the EIA Directive to which effect should have been given by either of the impugned decisions and which would have led to a result in favour of CPRE.

Difficult questions might arise if a point was argued on one basis, which was bound to fail, but which would have succeeded if made on another basis. Köbler liability does not attach in our judgment in those circumstances unless it can be said that the court should itself have taken the point that would have succeeded. In Kraaijeveld, the Court of Justice held that where a court had power to take a point of national law, it should be under a duty to do so also in relation to “binding rules” of Community law:

We proceed on the basis that a “binding rule” is one which a party either does not, or cannot, waive.

A national judge applying Community law is not expected to do more, by way of taking a point of his own motion, than a judge would normally be entitled or bound to do in his jurisdiction. If the position were otherwise, it might give rise to issues of a fundamental constitutional nature. An analogy can be drawn with statutory interpretation. Even when undertaking a conforming interpretation a national judge is only required by Community law to interpret national legislation in conformity with Community legislation if that can be achieved under domestic principles of statutory interpretation: Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (Cases C-397/01 to C-403/01) [2005] ICR 1307, [112] to [119]. In England and Wales, in public law, the court may, if it is aware of the point, within certain limits take a point of law that has not previously been put forward by any party but which it considers has an important bearing on the case. Mr McCracken relies on this principle to assist his case where the argument put forward on behalf of CPRE did not make some submission which (if the court had not acted in breach of Community law) might have won the day.

The point in the last paragraph is quite separate from the question whether the court should refer a matter to the Court of Justice for a preliminary ruling. In that context, the court has a right to make such a reference of its own motion under Article 234. A court of final instance has an obligation to make a reference where the matter is not acte clair and the issue is one which is necessary for the purposes of its decision.

One of Mr McCracken’s criticisms of the impugned decisions is that the courts failed to grapple with issues of Community law argued before them. However, as we see it, the question is not whether the courts grappled or engaged with every point of Community law argued before them but whether the court failed to deal correctly with a point of Community law which was material to the Köbler cause of action.

Mr McCracken submits that all he has to show is that this court should have ruled that a point of Community law was arguable and given permission to bring judicial review proceedings, and that he does not also have to show that he would have established at the full hearing that there was in fact a breach of Community law. We would leave open the question whether this is in fact so. The right to bring judicial review proceedings is a procedural right conferred by domestic law. It may be that Köbler liability does not extend to the non-enforcement of Community law in this situation, even if the consequence in this case was that CPRE incurred a liability in costs which it would not otherwise have incurred or a liability in costs which was larger than would otherwise have been the case. That was a sanction flowing purely from domestic law. In addition, it may be that it is not enough for the claimant in a Köbler claim to assert a breach of the obligation on a final court to make a reference without also showing that, had the reference been made, it would have resulted in an answer which would have determined the litigation (so far at least as Community law issues are concerned) in his favour. We note that, although the Court of Justice in Köbler lists non-compliance with the obligation to make a reference as a factor which may result in the breach being characterised as sufficiently serious (see Köbler, paragraph 55), it is not described as a manifest breach in itself. This lends support to the argument that a breach of Community law may not be relevant unless it results in a breach of substantive Community law. As against that conclusion, there is no principled distinction between the position of a claimant who is deprived of a benefit because of a serious breach of Community law and the position of a claimant on whom a penalty is imposed for the same reason.

Alternatively, it may be that the breach of the obligation to refer should always be treated as insufficiently serious unless the answer to the question that ought to have been referred would have been that the order which the national court made constituted a breach of a substantive rule of Community law.

If any of these arguments are correct, the failure to give permission or, as the case may be, to make a reference to the Court of Justice is not capable of giving rise to Köbler liability, unless Mr Cooper can show that the point of Community law in question would, when finally determined, have led to the conclusion that Hammersmith and Fulham could not proceed with the White City development applications without the EA which CPRE sought.

As these points were not argued, we leave them open and express no view on them.

Because we are only dealing with the first two preliminary issues, we need only examine the first two conditions in Köbler. As to the first, it is accepted that the EIA Directive and Article 234 of the EC Treaty give rise to directly enforceable rights and accordingly the only issue under the first condition to Köbler liability is to identify the breaches of the case law of the Court of Justice and Article 234. This should be done without at this stage dealing with the factors “which characterise the situation” before the court and which form part of the second condition in Köbler (see paragraphs 54 and 55). If there was a breach of the case law of the Court of Justice or of Article 234, this court has to proceed to examine whether it was "sufficiently serious" for the purposes of Köbler liability.

The question that falls to be considered is whether the judge was correct to answer the preliminary issues as he did. We are concerned only with the two impugned decisions of this court. The judge also considered whether there were errors of Community law in the decisions of Richards and Harrison JJ, but this is unnecessary for Köbler purposes, save in so far as it throws any light on errors made by this court. The preliminary issues could probably therefore have been more narrowly drawn.

Mr McCracken has identified a large number of infringements of Community law. The infringements relied on in relation to the first impugned decision may be summarised as follows:

Mr McCracken has taken us in some detail through the skeleton arguments and Form 86A in this case, and the case law of the Court of Justice, in order to show that these points of Community law were placed before this court for decision and incorrectly decided.

Both (a) and (b) of paragraph 88 above raise the same point, namely the meaning as a matter of Community law of the expression “development consent” in the EIA Directive. In the light of Commission v United Kingdom, there can be no doubt that the conclusion of this court that only the outline planning permission constituted the development consent was a breach of Community law.

However, that was not the only relevant point which the Court of Justice decided in that case. As we observed above, the Court of Justice also decided that, in the case of a multi-stage development:

We have pointed out that this passage was explained by Lord Hope in Barker to cover a case where the need for an EA was overlooked at the outline planning permission stage. In the present case, CPRE was seeking to attack the grant of outline planning permission but had to show more than that the need for an EA had been bypassed. It had to show that it would have been entitled to challenge the refusal to have a full EA at the outline planning permission notwithstanding that the time limits for challenging that decision had expired. There was no delay in starting the proceedings to make the reserved matters challenge or the revocation challenge as those proceedings were commenced within the time limits required for judicial review proceedings. However, the problem was that the proceedings had as their target the outline planning permission and as a matter of domestic law the time allowed for taking proceedings to challenge that had passed.

To meet this point, Mr McCracken relies on Wells. In that case, the permission was given in 1994 subject to certain conditions. The applicant expressed the wish to challenge the lack of an EA shortly before the conditions were finally approved in 1997. The Court of Justice dismissed the argument that she should have brought her challenge earlier:

However as Mr Eadie points out, there may be an inherent conflict between this passage and what the Court of Justice went on to say about remedying the failure to carry out an EA. Limitation periods are the paradigm situation in which domestic law may limit the enforcement of Community law rights and remedies. It is well established that limitation periods are a matter for national law, provided that national law complies with the principles of equivalence and effectiveness. The principle of effectiveness might have applied if, in relation to the outline planning permission, the EIA Directive had been incorrectly transposed, but Mr McCracken does not suggest that the time limits for judicial review contravene the principles of equivalence and effectiveness. Moreover, in Wells the quarry to which the permission related was not in operation at the time of the judicial review proceedings. The quarry could not be operated until the conditions were met. None of the questions referred by the High Court to the Court of Justice in Wells refers to time limits. Thus the explanation for the fact that the Court of Justice does not refer to time limits in the passage cited above may be that, as judicial review proceedings would not involve any interruption of the operations of the quarry, it was a case in which an extension of time for bringing judicial review proceedings would in any event have been given so that the question of time limits did not arise.

The relevant passage of the judgment of the Court of Justice is as follows:

In this passage the Court of Justice clearly contemplates that the obligation of the national courts to remedy a past failure to carry out an EA would be subject to the procedural autonomy of the member state in relation to the protection of Community law rights. In our judgment, the Greenpeace principle, as we have termed it, lays down how the limitation period is to be calculated in a case such as the reserved matters challenge in this case, and thus falls within the matters which are governed by national law. It is not suggested that the Greenpeace principle offends the Community law principles of effectiveness and equivalence.

The House of Lords in Barker did not deal with the question whether the failure to have an EA at the date of outline planning permission could still be challenged at the reserved matters stage if the outline planning permission had ceased to be capable of challenge due to the passage of time. Lord Hope made the point that there might be an EA at a stage following the outline planning permission stage but he did not consider the position where the outline planning permission could no longer be challenged because the time limits had been exceeded.

Mr Eadie points out that, while Wells concerned an old mining permission, the effect of the ruling by the Court of Justice would be likely to have much more far-reaching consequences in the ordinary case where outline planning permission has been given and is challenged by judicial review some considerable time later when the developers and others have spent considerable sums of money in preparation for starting the development. The cost of compensating the developers for the costs that they have incurred in reliance on the permission, if it were revoked, may impose a significant burden on the public purse (see s 107(1) of the 1990 Act). The rights of individuals under the EIA Directive had to be balanced against these factors. In this case, CPRE had been guilty of extraordinary delay which was more than sufficient to prevent it from challenging the outline planning permission directly under domestic law.

Mr McCracken submits that there is an exact parallel between the approval of deferred matters, as in Wells, and the approval of reserved matters, as in this case. He submits that paragraphs 59 and 60 of Wells are clear and should be followed. Moreover he submits that delay was not a free-standing point in relation to the impugned decisions and that delay was not an objection to the reserved matters challenge or the revocation challenge because the proceedings were commenced within the time limits for judicial proceedings so far as those matters were concerned. But that is not the point. The point is that, even though an extended meaning should have been given to “development consent” and the 1988 regulations should have been interpreted compatibly with that extended meaning, or alternatively direct effect should have been given to the rights arising under the EIA Directive to the extent that it had not been correctly transposed, nonetheless CPRE’s application would have been subject to time limits imposed by national law.

Mr McCracken’s submission that the reserved matters challenge and revocation challenge were lodged in time does not deal with the Greenpeace principle, which is a principle of domestic law and which means that the time limits for bringing judicial review proceedings in respect of later administrative acts cannot be relied upon where the real challenge is to an earlier act for which the time limits have expired. So far as the policy considerations are concerned, Mr McCracken did not engage with the arguments put forward by Mr Eadie. Mr McCracken has not taken us to any decision subsequent to Wells which clarifies how it operates where the member state has a rule such as the Greenpeace principle.

In our judgment, Mr Eadie is correct to say that Wells leaves a real question whether an EA point can be raised at any time (specifically, in this case, the reserved matters stage) irrespective of time limits applying to the outline planning permission. We will call this point “the Wells point”. Subject to its being necessary to do so for the purposes of resolving this, this court could refer a question on the Wells point to the Court of Justice. Certainly without clarification of its decision we would not be willing to hold that Wells concluded this point in CPRE’s favour, and it is unnecessary to consider whether it should be resolved in the Attorney General’s favour. Self-evidently the breach was not a manifest breach of the case law of the Court of Justice for this reason alone. The real breaches here were the failures to give permission to bring judicial review proceedings and then to refer the Wells point to the Court of Justice for a preliminary ruling (point (c) in paragraph 88 above) and it is accordingly those breaches which must be examined to see whether it is a manifest breach for Köbler liability purposes.

As to the modifications point (point (d) in paragraph 88 above), this court was, in the light of Kraaijeveld, in breach of Community law in not holding that the modifications to the outline planning permission also gave rise to an obligation under the EIA Directive to consider whether an EA was necessary. The EIA Directive had direct effect and accordingly it did not matter whether the 1988 regulations were capable of a conforming interpretation.

Mr McCracken, in his speaking note for his opening speech, produced a non-exclusive list of seven infringements which were partly duplicative or argumentative. We have taken account of refinements to the list made orally. The following list captures the essence of the infringements of the EIA Directive and Article 234 relied on by Mr Cooper:

As to (a), again it is clear that this court was wrong in law to hold that the development consent for the purposes of the EIA Directive did not include the reserved matters stage, but Ward LJ notes that it was conceded that the transposition was correct. Mr McCracken submits that this was inconsistent with the Article 10 point but that is not correct. What the Article 10 point did was to superimpose an obligation on to the provisions of the EIA Directive. Mr McCracken submits that this court should have investigated whether there was a breach of the EC Treaty or the EIA Directive and should not have relied on the parties to raise the point. For this purpose he relies on Kraaijeveld at paragraph 61, which we have already cited. In our judgment, he did not show that there was any binding rule that prevented this point from being conceded: CPRE brought the judicial review proceedings in its individual capacity. Its concession would not prevent any right from being enforced by any other person who chose to enforce it. The court was not bound to take the point of its own motion in those circumstances.

As to (b) to (e), the operative errors were the failure to order a reference for a preliminary ruling to clarify the Wells point (already discussed above), that is, whether individual action to enforce the obligation to consider whether an EA should be required could be taken under the EIA Directive notwithstanding that under domestic law the time for challenging the outline planning permission had expired, and for this purpose to give at least permission to appeal, the appeal to be heard when the answer to the ruling was to hand. These points eclipse (b) to (e). As to (b), as Plender J pointed out, the member state still has an obligation to see that a directive which has been transposed is correctly applied and it may need to have regard to the directive for this purpose. As to (c), a reference was not sought in relation to the development consent point, and the court was in error as events turned out in not requesting a preliminary ruling from the Court of Justice on this point. However, points (c) and (e) do not matter unless there was also an obligation to refer the Wells point. Accordingly, we now turn to the question whether the Wells point should have been referred.

It follows from the above that the failure to refer the Wells point either at the time of the first impugned decision or at the time of the second impugned decision represented a breach of Community law. The failures to give permission to bring judicial review proceedings at the time of the first impugned decision and the failure to give permission to appeal at the time of the second impugned decision were further breaches of Community law, but they do not add to the failure to refer point. We therefore concentrate on that point. If there had not been a failure to refer at the time of the first impugned decision, permission to appeal would probably have been given at the time of the second impugned decision as the answer to the reference is unlikely to have been received by this date.

In answering the question posed by the heading, the court is entitled to look at all the factors which “characterise the situation”. The starting point is the meaning of “development consent”. There was no case law of the Court of Justice on the meaning of “development consent” for the purposes of the EIA Directive at the time of the impugned decisions. The issue is a difficult point of law arising in a specialist field. In the first impugned decision, this court considered the question of the meaning of “development consent” to be acte clair. It dealt separately with delay, which it did not consider to raise any question of Community law. Whether any given matter is acte clair is a question of judgment, and to reach a considered but wrong judgment on this point is not properly described as ipso facto a manifest breach of the case law of the Court of Justice.

Moreover, the view taken by this court as to the meaning of “development consent” received powerful support from Lord Hoffmann in R v North Yorkshire County Council ex parte Brown [2000] 1 AC 397 at 404, which also concerned an old mining permission. Lord Hoffmann concluded:

Moreover, CPRE’s case was not as such adopted in Community law. The primary focus of its case moved from the meaning of “development consent” (a point argued before the first impugned decision was made) to focus on the general principles in Bozen and Kraaijeveld. In Wells, it became clear that there might be a requirement to have an EA at the reserved matters stage. However, the Court of Justice approached the matter not through Article 10 as a self-standing obligation, but through the meaning of “development consent”, which CPRE did not pursue in the revocation challenge because it accepted that the EIA Directive had been correctly transposed.

Until Wells, the view that an EA was not required at the reserved matters stage was, in our judgment, a reasonable one even apart from Lord Hoffmann’s support for it. Article 1(2) of the EIA Directive defined "development consent” as "the decision of the competent authority… which entitles the development to proceed with the project". This covers an entitlement to proceed subject to conditions, and it was well established in domestic law that the grant of outline planning permission creates the entitlement to proceed. In addition, article 2(1) of the EIA Directive made it clear that the obligation was on member states to adopt all measures necessary to ensure any project with significant effects on the environment was subject to an EA “before consent is given”. It was reasonable to suppose that where the grant of outline planning permission adequately covered the full range of matters later determined in detail upon consideration of reserved matters no further requirement arose at the reserved matters stage. Indeed the Court of Justice accepted this point in part because it held in Commission v United Kingdom that, in a multi-stage consent case, the principal requirement to consider an EA was at the outline planning permission stage.

Subsequently numerous domestic courts reached the same view as this court in the present case. For example, in Barker [2002] Env LR 631, this court again refused to make a reference to the Court of Justice on this very question at paragraphs 41 and 47. Reference may also be made to the decision of the High Court in R v Rochdale BC ex parte Tew [1999] 3 PLR 74. As already mentioned, Mr McCracken submits that the court is not entitled to look at the position in domestic law. We agree that domestic law cannot excuse a breach of Community law, but when the court is considering whether a breach is manifest, or sufficiently serious, the court is not restricted to asking itself whether there was a clear infringement of the case-law of the Court of Justice. It is able to look at all the relevant considerations. One of those factors indeed includes whether the breach was intentional, by which what must be meant is that it was deliberately intended to cause a breach of Community law. In dealing with that point, it is relevant to consider whether the court’s decision was in accordance with other decisions in its domestic law. Domestic case law will in particular carry weight where it purports to interpret and apply the relevant Community law.

Moreover, before the 1988 regulations were made, they were notified to the European Commission and were not the subject of complaint until 6 November 2000, which was after the conclusion of this litigation. The complaint then made was in relation to another development (Crystal Palace) (see paragraph 53 of the judgment of the Court of Justice in Commission v United Kingdom). No complaint was made in relation to the White City development until 19 April 2001 (Commission v UK at paragraph 43). In his letter dated 16 June 1999 Mr Kremlis of the Commission said that the requirement for an EA before the grant of outline planning permission appeared to conform to the EIA Directive. On 14 March 2000, Mr Kremlis stated that it was up to the member state to decide how to organise its consent procedures and that the time limit of the proceedings was to be set by the domestic legal system. That was in line with the conclusion of this court in the second impugned decision.

CPRE made a request in the first impugned decision for a reference in relation to the meaning of “development consent” but its request for a reference at the time of the second impugned decision was focused on the Article 10 point. We accept Mr Eadie’s submission that, even though this court could have considered making a reference of its own motion, the failure of the parties to ask for a reference is material to the question of whether there was a manifest breach of Article 234.

In our judgment, in all the circumstances set out above, the failure to make a reference on the “development consent” point at the time of the first impugned decision, and even more at the time of the second decision, was excusable and did not amount to a sufficiently serious breach of Community law to engage Köbler liability. The domestic courts considered the point and reached a different view from the Court of Justice on a matter of interpretation. In any event, CPRE’s claim was not defeated by the development consent point but by the development consent point together with the effect of delay, i.e. the Wells point.

Although the Wells point is unclear, the principle that limitation periods for enforcing Community law rights are a matter for domestic law, subject to the principles of equivalence and effectiveness, is long-established. It was reasonable for this court to proceed on the basis that the time allowed for challenging the outline planning permission whether on its own or through the reserved matters challenge was a matter for domestic law. While as a general proposition it was established by Bozen that member states had an obligation under Article 10 to remedy breaches of the EIA Directive, there was nothing prior to Wells to show that, where the EIA Directive was accepted to be correctly transposed, this obligation could be invoked even though the non-compliance was now immune from attack under domestic rules. In Bozen and Kraaijeveld the directive had not been correctly transposed; the principle of procedural autonomy for national law with regard to limitation periods would thus not necessarily apply. Moreover those cases only supported a general obligation on member states, to “nullify unlawful administrative acts.” They did not directly bear on the question whether an EA should be required at the reserved matters stage or whether a power of revocation had to be exercised in circumstances where the non-compliance occurred was no longer capable of challenge.

In other cases, the English courts considered delay to constitute a bar to judicial review and capable of disentitling the claimant from a remedy under the EIA Directive. Thus, in R v North West Leicestershire DC ex parte Moses [2000] Env LR 44, the Article 10 point had been roundly rejected on the grounds that there had been delay.

It is also relevant to take into account that, although Mr Jay sought to argue the contrary, with limited reference to any evidence, on the revocation challenge, it was not CPRE’s case that it was irrational to reach the conclusion that an EA was not required at the outline planning permission stage. That would have been a more serious case. It relied on a procedural defect.

For all these reasons, we do not consider that it was a sufficiently serious breach of the case law of the Court of Justice for the purposes of Köbler liability for this court not to refer the Wells point to the Court of Justice instead of deciding the case as it did in the impugned decisions.

As to modifications, the decision in Kraaijeveld meant that these should have been treated as within the EIA Directive and as giving rise to an obligation to consider the need for an EA. This court in its first impugned decision had regard only to the 1988 regulations. It gave no consideration to the EIA Directive or the decision of the Court of Justice in Kraaijeveld on this point, or accordingly to the need for an interpretation of the 1988 regulations which conformed so far as possible with the EIA Directive or the possibility of giving direct effect to the provisions of the EIA Directive. There was no concession at this stage that the EIA Directive had been correctly transposed. Thus there was an error of Community law and the error is not dependent on the Wells point.

The modifications point was taken for the first time in the re-amended Form 86A, dated 14 December 1999, supported in brief terms by paragraph 9 of CPRE’s skeleton argument of the same date. But even then the relief sought did not include quashing of the decision to approve the modifications but was restricted to a declaration “that the reserved matters decision was unlawful by reason of ... failure to consider whether EA should apply in so far as these amounted to modifications ... which might have significant environmental effects” (see above, paragraph 36). Thus the point was taken as a means of attacking the approval at the reserved matters stage, rather than in its own right, and there was no challenge to Hammersmith and Fulham’s decision to approve the modifications itself. In our judgment, the error of Community law in dealing with this point was excusable in these circumstances.

Mr McCracken submits that this court should refer to the Court of Justice the following questions:

Were any of the following infringements of EC law sufficiently serious for the purposes of the second condition in Köbler:

in relation to the reserved matters challenge

The failure to hold that it was arguable that an EA might be required at the reserved matters stage in the case of a multi-stage consent;

The failure to refer that question to the Court of Justice.

in relation to the revocation challenge

The article 10 point;

The failure to refer the article 10 point to the Court of Justice.

Is an infringement of EC law sufficiently serious if the Court of Justice upheld a claim on which CPRE was unsuccessful in either of the two impugned decisions?

Can domestic law be taken into account as a factor which characterises the situation?

What is the meaning of manifest breach?

Is Article 234 directly enforceable?

This court is not obliged to make a reference as it is not sitting as a court of last instance appeal on this appeal. Questions (i) and (ii) relate to the seriousness of the breach, which is a matter for the national court (see Köbler, paragraph 54). We do not consider that there is any real doubt as to the relevant infringements of Community law in this case. It is not necessary that this court ask the Court of Justice to rule on the Wells point for the purposes of establishing Köbler liability because it is sufficient to consider whether there was a violation of the obligation under article 234 in relation to the Wells point at the time when that obligation is alleged to have arisen.

As to question (iii), Mr McCracken argued that the court was not entitled to take domestic considerations into account as this would lead to divergent standards of liability across the European Union. However, domestic law is the lens through which the national judge sees Community law and if the Court of Justice had intended that any such consideration should be excluded, it would in our judgment have said so. Moreover, even if domestic decisions were not relevant, we would have reached the same answer.

As to the general question on manifest breach (question (iv)), the Court of Justice has in our judgment given the requisite level of explanation in its decisions in Köbler and Traghetti.

The Attorney General opposes the making of an order for a reference. More importantly, she does not take a point that article 234 does not confer a directly enforceable right on this appeal because in the light of the fact that the EIA Directive is directly enforceable that point does not matter. Accordingly question (v) is not a properly referable question in any event.

In the circumstances, we refuse the application for a reference made by CPRE on this appeal.

Mr McCracken did not suggest that we were disbarred from hearing this appeal because the impugned decisions had been made by other constitutions of this court.

We would regard it as highly desirable that in cases, especially applications for permission to appeal, where, exceptionally, the court is sitting as a court of final instance in a matter of Community law, advocates should remind the court of that fact and of the court’s duty to give careful consideration to the Community law aspects of the case.

The judge concluded his judgment with a paragraph headed "Postscript". The main point in that paragraph was that a decision of a national court, which is inconsistent with a later decision of the Court of Justice, cannot give rise to Köbler liability. While this is likely to be the position, we do not consider that this is always so. It depends on whether the development in the case law of the Court of Justice could have been predicted. We would, however, agree with him that the claimant needs to overcome high hurdles in order to establish a claim based on Köbler liability, and that claims based on Köbler liability are likely to be rare.

There was at an earlier stage in this appeal an application to appeal the order for costs made by the judge in any event but that matter has not been argued before this court on this appeal.

For the reasons given above, which to a significant degree are the same as those given by the judge, we dismiss this appeal.