AVOCETTA MADRID MEETING 2012 UNITED KINGDOM 1 RICHARD MACRORY

Transcription

1 AVOCETTA MADRID MEETING 2012 UNITED KINGDOM 1 RICHARD MACRORY 1. CONTEXT The United Kingdom joined the then European Community in Most of the political discussion at the time was about the potential trade benefits, and very little was said about the supremacy of Community law and its implications, even though the ECJ had already well established the supremacy doctrine (Costa v ENEL 1964). The core Act of Parliament which effected the UK s joining, the European Community Act 1972 and which still applies, provided that, All such rights, powers, liabilities, obligations and restrictions from time to time created by or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties and without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed and followed accordingly;." (s 2(1)) In 1974 in a well-known judgment the iconic British judge of the 1960s and 1970s, Lord Denning, then head of the Court of Appeal, gave a lead judgment in an intellectual property case, Bulmer v Bollinger, and provided the first guidelines on when British courts should make referrals to the ECJ. He described the effect of Community law in vivid language :.When we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. 1 Case law search has been confined to the last ten years, and mainly conducted through LEXIS and BAILII data-bases which pick up most of the important UK decisions. Websites of some of the chambers of specialist environmental barristers has also provided information on recent cases. I am very grateful to Heather Hamilton, LLM and solicitor, for assistance in the research.

2 The Courts since then have become increasingly familiar with European doctrines, and there have been no major doctrinal disputes concerning conflicts of supremacy, since the key principles derive from the broad wording of an Act of Parliament. Ten years or so, it could be said that the lower courts were variable in how they treated European Union law, the Court of Appeal tended to be rather more nationalistic and was especially reluctant to make referrals, while the House of Lords (now the Supreme Court) was far more alive and sensitive to the implications of European Union law. But the picture is now far more nuanced, and there is a far greater sensitivity to and familiarity with EU issues on the part of both the judiciary and litigation practitioners. In the environmental field, a key turning point was the 1990 decision Berkeley v Secretary of State concerning the environmental assessment directive. No environmental assessment had been undertaken in the case, but the lower courts including the Court of Appeal had adopted the hitherto conventional national approach, holding that all the information was around at the time, and that there would have been no difference to the final decision even if a formal EA had been undertaken. The House of Lords (now the Supreme Court) utterly rejected this approach and quashed the decision, emphasizing that the Directive was as much about public participation as anything: The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information necessary to enable them to reach a proper decision on the environmental issues. (Lord Hoffman) Equally importantly, while UK courts still have a discretion as to a remedy to be granted if where illegality found, the House of Lords signaled that when it came to non-compliance with EU law, the discretion was severely limited:

3 I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty (Lord Hoffman) The decision sent a powerful signal to lower courts of the need to respect the requirements of EU environmental legislation. At the same time, Government have become more sensitive to the requirements of transposition. In the environmental field, it has be said that in the early days, the UK Government tended to view Directives as helpful if eccentric recommendations to be gently eased into the United Kingdom scheme of things, ideally by government circular rather than legislation and ideally without cost. 2 Formal transposition has improved over the years with more direct copy out where necessary (but still sometimes missing deadlines with the smaller jurisdictions such as Northern Ireland), though there remains some significant gaps (such as access to justice provisions) where court intervention and the use of direct effect doctrines have proved important. Despite better formal transposition environmental case law over the last ten years illustrates that the transposing principles of the European Court of Justice still come into play in environmental cases. My feeling is that in contrast to the position in Netherlands as described in Jan Jans paper the British courts are rather more comfortable in handling directives as having direct effect, and that the doctrine of sympathetic interpretation, though acknowledged by the courts, has proved less significant in actual outcome. If that is the case, I do not yet have any theory to explain it. It may be in part because historically the British legal tradition of judicial interpretation was to not to stray beyond the clear words of national legislation, given no written constitutional principles capable of overriding legislation and the underlying 2 Wyatt D (1998) Litigating Community Environmental Law Thoughts on the Direct Effect Doctrine JEL 10(1) 9-19

4 principle of the sovereignty of Parliament. This of course has now changed but the judiciary has to learn the extent of their discretion in this context DIRECT EFFECT In the last ten years there appear to be around twenty reported cases in the higher courts (High Court, Court of Appeal, Supreme Court) where the direct effect doctrine has been raised in relation to environmental directives. These are cases considered to be involving important points of law. In a number of cases, the parties have simply raised the issue, but some of the key decisions are as follows: (a) Environmental Assessment Directive There seems to be a much greater acceptance these days by both government lawyers and the courts that the EA Directive has direct effect generally. This is in sharp contrast to decisions in the early 1990s where national courts have held, inter alia, that the direct effect doctrine could not apply to Annex II projects because of the discretionary element involved. R (on the application of Gavin) v Haringey London Borough Council [2003] EWHC 2591 (Admin) Berkeley makes clear that individuals affected by the development have a directly enforceable right to have the need for an environmental statement considered before the grant of planning permission and that, where the question has not been considered, it is not normally permissible for the court to withhold relief in the exercise of its discretion. Walton et al v Scottish Ministers [2011] CSOH Aside from the EU legal principles, the introduction of the Human Rights Act 1998 has fundamentally shifted the relationship of the courts to legislation, and contains the requirement that, So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

5 In this case the legality of a ring road was challenged inter alia on grounds that objectors had not had any proper right of early participation. Court noted that Art 6(4) (early participation) had not be formally transposed in national law : it was common ground that if full and effective transposition had not been achieved, the appellants could rely upon the direct effect of the EIA Directive as amended..i proceed upon the basis that the appellants had a directly effective Community law right under Article 6(4) to early public participation, when all options were open and effective public participation could take place. (b) Access to Justice Provisions in Environmental Assessment Directive as amended In the last two years the courts have held that these provisions have direct effect. This is highly significant in the context of a long running dispute between the UK Government and the European Commission (and the Aarhus Compliance Committee) as to whether costs rules in the UK satisfy the not prohibitively expensive provisions in Aarhus, especially given that in public law cases the losing party must generally pay the winning party s legal costs. The UK Government did not expressly transpose the provisions of the EIA and IPCC Directive on these points, leaving it to court discretion in individual cases to make rulings as to costs to satisfy the requirements this issue is now going to the ECJ in an infringement action brought by the Commission. The Aarhus Convention itself cannot be invoked directly before UK courts because a dualist approach to international law applies, hence the potential direct effect of the environmental directives containing those provisions are extremely significant. R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 UK Courts have a discretion to limited exposure to costs by granting in advance a Protective Costs Order (PCO), but the Court of Appeal had in earlier case-law held that a PCO could only be granted in cases raising issues of general public importance and where the claimant had no private interest

6 in the matter. These limitations do not appear in the Directive, and in this case, the Court of Appeal held that these judicially created principles could no apply where through application the direct effect doctrine : It is common ground that the Directive has a direct effect in our domestic law..under EU law it is a matter of general public importance that those environmental decisions subject to the Directive are taken in a lawful manner, and, if there is an issue as to that, the general public interest does require that that issue be resolved in an effective review process. The Court also invoked Marleasing (see below) to justify a change in approach. Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 This was a challenge by non-local objectors to the grant of permit for biomass plant, and court was asked to consider granting a Protective Costs Order. The court held: There is no dispute but that the Defendant's decision to grant planning permission to the First Interested Party for a power station at Avonmouth is a decision to which Directive 85/377 EEC (as amended) applies. It is also common ground that the Directive has a direct effect. On the facts, however, the court held that the objectors who came from another part of the country were not members of the public concerned and therefore the Directive not relevant in the decision concerning the Protective Costs Order. Morgan and another v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107 In the context of discussion of the Aarhus Convention, Court doubted whether discretionary powers of of courts to handle costs would satisfy EU law, and suggested that the court procedural Rules should be amended. 4 4 In 2011 the Ministry of Justice issued a consultation document proposing amendments to the Civil Procedure Rules which would automatically apply PCOs in Aarhus cases : Cost Protection for Claimants in Environmental Judicial Review Claims : Outline Proposals for a cost-capping scheme for cases falling within the Aarhus Convention

7 Certain EU Directives (not applicable in this case) have incorporated Aarhus principles, and thus given them direct effect in domestic law. In those cases, in the light of the Advocate-General's opinion in the Irish cases, the court's discretion may not be regarded as adequate implementation of the rule against prohibitive costs. Some more specific modification of the rules may need to be considered. (c) Insufficiently precise and other reasons for rejecting direct effect doctrine Ardley against Incineration v Secretary of State for Communities and Local Government [2011] EWHC 2230 In this case, local residents challenged the legality of the decision to approve a waste incineration plant, on the grounds inter alia that local concerns about air pollution had not be properly addressed and that Art 13 of 2008 Directive (Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment ) had direct effect. The Court of Appeal held that Art 13 of the revised Waste Directive had no direct effect, not too surprisingly given that the ECJ had already made the same point in relation to Art 4 of the 1975 Directive, its predecessor. Article 13 sets the objectives which have to be achieved but it does not prescribe unequivocally what in any particular case those objectives may require. Its implementation requires decisions by national authorities. It is thus neither unconditional nor sufficiently precise to be directly relied on by individuals. Export Credits Guarantee Department v Friends of the Earth [2008] EWHC 638 A request for information under UK Environmental Information Regulations which Government claimed was exempt from disclosure on grounds that these were internal communications and no public interest outweighed to justify disclosure. Court held, without further discussion since UK provisions appeared to transpose correctly the Environmental Information Directive:.

8 The Directive has direct effect as regards its object in domestic law, but it is otherwise not of direct effect. It is, however, a powerful aid to the interpretation of domestic legislation passed into law to give effect to it. (d) State cannot claim benefit of Direct Effect United Utilities Water plc v Environment Agency for England and Wales [2007] UKHL 41 The claimant argued that no IPCC permit was required, and that national laws had mistakenly extended the ambit of the Directive concerning activities on the same site. Court considered whether Directive could have direct effect but rejected the argument Though we have not heard argument as to the jurisprudence relating to the direct effect doctrine, I should say that I greatly doubt whether such a submission could properly have been made. The Environment Agency is an arm of the State, and the State was of course responsible for transposing the IPPC Directive into domestic law. If it has been transposed on a basis too onerous to the State regulator, I do not consider that the State can take advantage of the mistake. The Environment Agency must, so to speak, live or die by the PPC Regulations. (e) Treaty Provisions The Aarhus Convention has been raised in a number of cases, but there do not seemed to be any recent cases where EU Treaty provisions concerning the environment have been held to have direct effect. (f) Waddenzee/Kraaijvelkd Doctrine Kraaijveld has been raised in a number of cases concerning the nature of judicial review of discretion, but we cannot find any environmental cases where it has been invoked by the Court to raise issues of its own motion (see further below at 6). (g) Emanation of the State

9 The issue has been raised in a number of cases, though in the event not proved conclusive. In 3C Waste Ltd v Mersey Waste Holdings Ltd and another [2006] EWHC 2598 court considering the validity of waste disposal contracts. Mercy Waste was a wholly owned subsidiary company of the local authority court considered it raised interesting issues as to whether the company was an emanation of the state for the purpose of direct effect of the Landfill Directive, but did not have to deal further with the issue in the case. In a dispute between two arms of local government R (on the application of Westminster City Council and another) v Mayor of London [2002] EWHC 2440 (Admin), a London Borough Council challenged the Mayor of London s decision to introduce a traffic congestion charge in Central London, partly on the grounds of a failure to conduct an environmental assessment. Considering whether the Directive had direct effect, the court noted that the both parties were emanations of the state, and held the direct effect doctrine could not be invoked by an emanation of the state however innocent against another part of the state: I conclude that the language used in the Court of Justice and in the English cases individuals, citizens, a recognised interest in implementation is deliberate. It does not extend to public authorities. In an interesting and controversial decision the Upper Tribunal (equivalent to the High Court in legal standing) held in Smartsource v Information Commissioner [2010] UKUT 415 that a privatized water company was not a public authority for the purposes of the Environmental Information regulations. Earlier case law had held that such privatized authorities were emanations of the state for the purposes of the direct effect doctrine (in EC employment law) but the Tribunal held the tests were not necessarily the same. The fact that the authorities received no subsidies from government and had private shareholders were significant factors: The notion of a public authority is both place- and time-specific. We have already identified the differences that exist within the United Kingdom, without having to refer to differences across Europe as a whole today. As regards the passage of time, the Information Tribunal observed in the Network Rail case that Whatever the position in 1947, running a railway is not seen nowadays in the United Kingdom as a

10 function normally performed by a government authority. In the same way, perceptions of the water industry have shifted over time (h) Indirect Horizontal Effect The leading case on the issue in the UK R v Durham County Council Ltd and others, ex parte Huddleston [2000] All ER (D) 297 is just over ten years old but still quoted today. It concerned the application of the environmental assessment directive to old mining permissions. An owner wishes to revive an old planning permission after the EA Directive came into force but the national transposing legislation had failed to apply the Directive, wrongly, to such cases. The decision of the local authority to grant the permission was challenged by a local resident and the question was whether the application of the direct effect doctrine would alter the legal relations between the owner and the local citizen or as the court put it, is this the forbidden territory of horizontal direct effect? The court noted ECJ decisions such as Bozen and Fratelli Costanzo, and held that the direct effect could be invoked here. Requiring the developer to obtain a permission before he proceeded with a development did not make his existing conduct criminal or affect private relationships in the way prohibited by the ECJ. To read "the imposition on an individual of an obligation laid down by a directive which has not been transposed" as including the application to an individual of conditions laid down by such a directive for the grant of a necessary permission by the state would be to nullify the Court's decisions and reasoning in Paftitis, Smith & Nephew, Costanzo and Bozen. what is at issue in the present case is on what terms the local state can lawfully authorise a particular activity for which the company requires the state's permission. As the manner of bringing the claim underlines, this is a pure question of public law: that is to say, a question of the limits of the state's powers in a field where authority has been delegated by Parliament to what is now the European Union. (i) Inverse Direct Effect The issue has been raised directly in one recent case, Wirral Borough Council v Brock plc [2004] EWCA Civ 1611 though in the event did not prove decisive

11 to the actual decision. Essentially the local authority tried to require a private applicant, Brock, to submit an Environmental Statement in accordance with the Directive, even though the then national transposing regulations wrongly failed to apply to the Directive to this type of case. The court noted the force of the local authorities arguments that: If the Directive can be enforced at the suit of an individual as against the Council, and therefore indirectly against Brock, it is odd that the court, in litigation between Brock and the Council, should not give effect to it But the judge indicated that if it had been decisive he would not have permitted the local authority to enforce the directive in this way. (j) Indirect Horizontal Effects A good example is R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 595 where the claimant sought to quash three planning permissions granted by the local authority for two waste management sites run by Hinton Organics. The case turned on the question of whether the national implementing regulations for environmental assessment have properly applied the EIA Directive. The court found that the regulations did not properly implement the Directive and quashed all three permissions. 3. CONSISTENT/SYMPATHETIC INTERPRETATION In the Garner case (noted above) the Court of Appeal modified existing judge made principles concerning costs in the light of the directly effective provisions of the Environmental Assessment Directive on Access to Justice. But they also invoked Marleasing as a ground for doing so. Interestingly this is applied not to a piece of legislation but to judicially created principles for granting Protective Costs Orders laid down by a previous Court of Appeal decision (Cornerhouse). Under normal and strictly applied rules of UK

12 precedent this decision would have been binding on a subsequent Court of Appeal. The Corner House principles are judge-made law and in accordance with the Marleasing principle.those judge-made rules for PCOs must be interpreted and applied in such a way as to secure conformity with the Directive. Marleasing is quite often raised in cases and acknowledged by the judges but does not seem often to have a critical impact on the outcome of the case in question. R (on the application of Anti-Waste Ltd) v Environment Agency [2007] EWHC 717 was a complex case exploring whether the Landfill Directive and the UK implementing regulations allowed permits for landfill waste disposal on top of pre-existing closed landfills. As part of its approach, the Court noted: I remind myself that a national measure which is enacted in order to implement a Directive must be interpreted as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the result pursued by the Directive: see Marleasing [1990] ECR I-4135, [1992] 1 CMLR 305, [1993] BCC 421. The courts' obligation to achieve, so far as possible, the result the Directive has in view exists whether or not the national law has specifically enacted legislation which purports to implement the Directive: see Connect Austria [2003] ECR I-5197 at para 38. Thus if there is any ambiguity in the national law, the wording and the purpose of the Directive must prevail. In the event the court decided that the Directive and the Regulations did permit this sort of activity. And, as the Court of Appeal noted in a case United Utilities Water plc v Environment Agency for England and Wales [2006] EWCA Civ 633, It is elementary that a national measure purporting to implement a Directive must be interpreted as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter : Marleasing [1990] ECR I-4135, [1992] 1 CMLR 305, [1993] BCC SUPREMACY OF EU LAW

13 In general the British courts have not had a problem with this doctrine, though it seems fairly rare for it to be central to an environmental case. But in R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 334 the court followed a decision of the ECCU and held that demolition of a building could fall within the Environmental Assessment Directive. In doing so, they had to hold that the existing Direction issued by the Secretary of State (a form of delegated legislation) was unlawful, and should be ignored. In another recent case concerning environmental assessment, R (on the application of Baker) v Bath and North East Somerset Council [2009] EWHC 595 (Admin), the Court of Appeal felt quite able to disapply national regulations not in conformity with the Directive: This court clearly is able to disapply a particular provision of the regulations if that provision is inconsistent with a Directive which it purports to implement and that is what I am asked to do in the circumstances of this case.. I have come to the conclusion that the regulations do not.. properly implement the Directive. This is because they seek to limit consideration for the purposes of screening to consideration of the change or extension on its own. That is, in my view, contrary to the purpose of and the language of the Directive and the approach that should be adopted as set out by the court. In two cases noted below under Procedural Rules (section 7) the courts ignored words in the court procedural rules (a form of delegated legislation) considered to be contrary to EU principles. 5. FRANCOVITCH STATE LIABILITY There do not appear to be any environmental cases where claims for compensation have successfully been made. But in a recent case Cooper v Attorney-General [2010] EWCA Civ 464, the Court of Appeal considered a damages claimed based on erroneous decisions of the Court of Appeal (as made clear in a subsequent decision of the ECJ) in previous cases on environmental assessment (Kobler liability). The errors alleged included a failure to make a reference to the ECJ had been made. After a detailed analysis of the Kobler case law, and the actual facts and decisions in

14 questions, the Court concluded there had not been a sufficiently serious breach of Community law to justify a claim. 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. 6. NATIONAL COURTS CONSIDERING EU LAW OF THEIR OWN MOTION UK legal tradition, even in the field of public law, still rests very much on the adversarial tradition with opposing parties expected to raise all relevant issues of law before a judge who,may well not be expert in the field of law concerned. The concept of a court have an obligation to raise EU issues of its own motions remains challenging, and the Court of Appeal to date has shown they are not happy with lawyers who in their view, exaggerate the implications of Kraaijeveld. In Cooper v AG [2010] EWCA Civ 464, the Court of Appeal was clearly uncomfortable with the idea of the Court itself raising issues, and declined to do so: 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.. In Condron (R on the application of) v Merthyr Tydfil County Borough Council & Ors (2010) [2010] EWCA Civ 534 concerning the EIA Directive the lawyer for one of the parties suggested that in addition to questions for possible referral to the ECJ, the court was obliged to consider other aspects of the Directive not addressed by them. The Court was clearly frustrated with the way the claimant s lawyers had handled the case, raising late issues etc., and noted that

15 The court is not obliged to deal with points raised in this way, and for the reasons given in paragraphs 79 and 104 of Cooper v Attorney General [2010] EWCA Civ 464, there is no obligation on this court under European Union law to take a point which a party has elected not to take at the due time. In a more recent case, again the Court of Appeal has rejected an over ambitious interpretation of Kraaijeveld. In Ardley against Incineration v Secretary of State [2011] EWCA Civ 1408, the Court of Appeal refused to allow the applicant to raise new points of out time and amend their grounds of appeal: I am satisfied that the refusal of permission to amend on this, and on the point I have previously covered, is a permissible and proper application of ordinary procedural rules of national law and engages no issue of EU law. I do not accept Mr Buxton's contention that case C-72/95 Kraaijeveld, in referring at paragraph 60 to the obligations of the national court, lays down, even arguably, any principle that displaces the normal procedural rules of national law or somehow provides a trump card requiring this court to allow EU points to be taken at a stage where such points could not be allowed to be taken under the national procedural rules. 6. NATIONAL COURTS AND PARALLEL INFRINGEMENT PROCEEDINGS BY THE EUROPEAN COMMISSION There do not appear to any cases where parallel infringement proceedings have significant affected the conduct f a national case, though the issue has been discussed. R (on the application of Save Britain's Heritage) v Secretary of State for Communities and Local Government and another [2010] EWHC 979 concerned the question whether demolition of a building could be a project falling under the Environmental Assessment Directive (see further Section 4 above) The judge had suggested to the parties that they might stay the case until the ECJ decision in Commission v Ireland (on this point) was known (still some months ahead) but they rejected the proposal. The judge then considered whether to stay the proceedings on his own accord but decided against doing so:

16 I have to say with some reluctance, I decided not to adopt that course taking the view that if both parties wanted the question addressed by me in this case it was my duty to proceed since the delay that might otherwise result could be considerable 7. PROCEDURAL RULES - LIMITATION PERIODS The approach to limitation periods for bring judicial review claims has recently been changed by the courts in relation to cases involving EU environmental law. Under court procedural rules a claim for judicial review must be brought promptly and in any event within 3 months of the relevant decision; the courts have held that it is dangerous to assume that keeping just within the 3 months is sufficient depending on the circumstances, the test of promptness may require a claim to launched earlier. In Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377 the CJEU held that a similarly worded time-limit in regulations concerning public contracts was contrary to the requirements of legal certainty under EU law the promptness test gave too much discretion to individual judges, and was not sufficiently predictable. In two recent cases, the British courts have held that there is no reason to confine the reasoning of Uniplex to EU legislation concerning public contracts, and that it should be extended to other areas, including EU environmental law. In R (on the application of Buglife v Medway Council [2011] EWHC 746 the court held, The requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court has general application to such enforcement proceedings arising out of any directive. The promptness requirement was not applied, and the same approach was adopted in R (on the application of U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC Although the judge felt obliged to follow Uniplex he criticized the reasoning of the CJEU and felt that they had failed to understand that a court s discretion in UK law on limitation was not openended and had to be applied in accordance with defined principles.

17 In the most recent case on the issue of limitation periods, R (on the application of Macrae) v County of Herefordshire District Council [2011] EWHC 2810, the court held that these principles only applied to cases where EU law was involved. In a case such as the present which concerned only UK domestic planning law, the promptness test still applied. REFERRALS to the EUROPEAN COURT OF JUSTICE One of the earliest, iconic cases about the impact of European Community law on Britain referred to in the introductory paragraph concerned the principles of when UK courts should refer to the ECJ. There does not seem to be any comprehensive data at national level on the number of referrals, but comparative data of some 3000 references (up until 1995) has dispelled theories that British courts were loath to make references, but that there is a variation across different fields of law. The figures indicate that in the environmental field the UK has referred more cases than any other country with the exception of France, Italy and the Netherlands. 5 Nevertheless, courts are very sensitive to the time implications of a referral particularly in a case involving say private developers. Looking at the reported cases over the last ten years there appear to have been under 30 references overall - 6 in the Supreme Court (2 environmental), only one in the House of Lords, 15 in the Court of Appeal (Civil) and 4 in the Admin Court (including Aviation and Emissions Trading Scheme). Another method of analysis is to look at the reported decisions of the ECJ and CJEU on referrals (these of course will not pick up cases yet to be decided). These indicate between 2003 and environmental cases (8 from the High Court, two from Court of Appeal, one from the House of 5 Sweet and Brunell (1997) European Court and the National Courts : A Statistical Analysis Jean Monnet Paper

18 Lords, and one from the Supreme Court). Over a quarter of these were in 2011, but it is too early to tell whether this indicates an increasing trend. Richard Macrory