87593470_1

“Required by legislative, regulatory or administrative provisions”

Juliet Munn, King & Wood Mallesons LLP

2

Sets out the categories of plans or programmes to which the Directive applies:

“plans or programmes” shall mean plans or programmes, including those co-

financed by the European Community, as well as any modifications to them:

i. which are subject to preparation and/or adoption by an authority at

national, regional or local level or which are prepared by an authority for

adoption, through a legislative procedure by Parliament or Government, and

ii. which are required by legislative, regulatory or administrative

provisions.”

Article 2(a)

3

Implementation in the UK• England: Environmental Assessment of Plans and Programmes Regulations

2004;

• Wales: Environmental Assessment of Plans and Programmes Regulations

(Wales) 2004;

• Scotland: Environmental Assessment (Scotland) Act 2005;

• Northern Ireland: Environmental Assessment of Plans and Programmes

Regulations (Northern Ireland) 2004.

• England, Wales and Northern Ireland – reference to “required by

legislative, regulatory or administrative provisions” simply lifted from the

Directive.

• Scotland – SEA applied to all public sector strategies, plans or

programmes likely to have a significant environmental effect.

4

“required by”• Commission Guidance – this test will not be met if:

• Legislation is permissive (i.e. authority may prepare a plan rather

than will prepare a plan); or

• If authority draws up a plan of an activity that is unregulated.

BUT

• Member states may go further than the minimum requirements of

the Directive and can carry out SEA on plans or programmes that

do not meet the legislative test.

5

Inter-Environnement Bruxelles (1)• CJEU was asked by Belgian Cour Constitutionelle whether: "the SEA

Directive covers plans or programmes which are provided for in

legislative provisions but the adoption of which is not compulsory, or

whether the directive applies only where there is a legal obligation to

draw up a plan”

• Advocate General Kokott: “the word ‘required’ (…) must be construed as

meaning that the definition does not include plans or programmes which

are provided for by legislative provisions but the drawing up of which is

not compulsory. Plans or programmes which may under certain

conditions be prepared voluntarily are covered by that definition only in

cases where there is an obligation to drawn them up”

6

Inter-Environnement Bruxelles (2)• CJEU: “it must be stated that an interpretation which would result in

excluding from the scope of Directive 2001/42 all plans and

programmes, inter-alia those concerning the development of land,

whose adoption is, in the various national legal systems, regulated by

rules of law, solely because their adoption is not compulsory in all

circumstances, cannot be upheld (…) such an interpretation (…) by

appreciably restricting the directive’s scope, would compromise, in part,

the practical effect of the directive, having regard to its objective, which

consists in providing for a high level of protection of the environment”

• This interpretation has the effect that “required by legislative provisions”

includes plans and programmes the adoption of which is not compulsory

but where adoption is “regulated” by national legislative or regulatory

provisions.

7

Reaction of UK Courts • Walton v Scottish Ministers [2012] UKSC 44 – Lord Reed and Lord

Carnwath seemed sceptical about the “flexible approach required by the

European authorities”.

• HS2 – “a national court is faced with a clear legislative provision, to

which the Fourth Chamber of the European Court of Justice has, in the

interests of a more complete regulation of environmental developments;

given a meaning which the European legislature clearly did not intend.

For this reason, we would, had it been necessary, have wished to have

the matter referred back to the European Court of Justice for it to

reconsider, hopefully in a full reasoned judgment of the Grand Chamber,

the correctness of its previous decision” (Lord Neuberger and Lord

Mance)

8

Administrative Provisions

• Office of Deputy Prime Minister Guidance - such plans are likely to be:

• publicly available;

• prepared in a formal way;

• probably involving consultation with other parties;

• must have sufficient formality to count as a provision; and

• must use language that plainly requires rather than just encourages

a plan or programme to be prepared.

• Lord Carnwath in Walton – “ it seems some level of formality is required: the administrative provision must be such as to identify both the competent authorities and the procedure for preparation and adoption”

9

Concluding remarks