Case C- 98/04, Commission v United Kingdom

The Advocate General of the European Court of Justice (ECJ) delivered his opinion on 14 July 2005 in the case of European Commission v UK.

The case concerned the use of Lawful Development Certificates within the UK under provisions of the Town and Country Planning Act 1990.

Where the use of buildings or operations carried out in, on, over or under land are lawful for reasons that no enforcement action may be taken in respect of them, a Lawful Development Certificate is required to be issued, which has the same effect as planning permission in certain cases.

Under this system, set out in section 191 of the Town and Country Planning Act 1990, the lawfulness of a building or operation may arise due to the period in which enforcement action may be taken, expiring.

Lawfulness may also arise where development was not involved or planning permission required, or the operations did not constitute a contravention of the requirements of an enforcement action.

The Commission sought a declaration that the UK had failed to fulfil its obligations under Articles 2(1) and 4 of the Environmental Impact Assessment Directive (Directive 85/337/EEC).

These provisions of the Directive require any project likely to have significant effects on the environment to undergo an assessment of its impact prior to authorisation.

While Member States are given a large discretion, European law precludes implementation of such projects without prior authorisation and, if appropriate, without assessment of their impact, where implementation becomes irreversible with the passage of time.

The UK system of Lawful Development Certificates however, permitted action to be taken in breach of the Directive, without prior evaluation or impact assessment, and to be legitimised by the passage of time so that the situation was no longer able to be remedied.

The Advocate General has therefore recommended that the ECJ should declare there to be a breach of Articles 2(1) and 4 of the EIA Directive.

Details of the case can be found at curia.eu.int.


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