“it may become necessary to create such an authority if it is not already in existence..”

In the comments zone here, Alan posted a link to this recent High Court judgement on the environmental impact reports on draft Area Plans. The somewhat technical ruling was that those reports were “not in substantial compliance” with European Commission directives. But the ruling also contains a couple of very interesting paragraphs in which, if I’m not mistaken, Mr Justice Weatherup makes a case for an independent Environmental Protection Agency.. something the DUP have spoken out against. [But is the Enviroment Minister listening? – Ed]From the ruling

[15] I am unable to accept the argument of the Department on this issue. By the terms of the Directive it is apparent, as the Department accepts, that there be separation between the responsible authority and the consultation body. In the present cases I am satisfied that no such separation occurred and that it was not achieved by the Planning Service and the Environmental and Heritage Service being separate divisions of the same Department. For all practical purposes there was integration between the Planning Service and the Environmental and Heritage Service in the preparation of the documents. In any event had their been a formal separation of roles between the Planning Service and the Environmental and Heritage Service I would not have been satisfied that there was sufficient separation for the purposes of the Directive while the two services remain part of the same Department and legal entity. I reject the Department’s contention that the primary concern of the consultation process is access to expertise and consider that the purpose of the process relates not only to access to expertise but also to independence. Accordingly I am satisfied that the rationale of designating bodies with specific environmental responsibilities is not to ensure that all parts of Government are fully informed of the information available to all other parts. The necessity for consultation contributes to more transparent decision-making and to comprehensive and reliable information being available and these require not only expertise but independence. I consider it to be necessarily implicit in Article 5.4 and Article 6.3 that there be consultation with an authority with relevant environmental responsibilities which is external to the responsible body.

[16] Accordingly it may become necessary to create such an authority if it is not already in existence in the domestic structures. The relevant regulations transposing the Directive in England and Wales and Scotland designate more than one consultation body in each jurisdiction and this issue should not arise. The Department refers to Protocol No 30 of 1997 on subsidiarity and proportionality at point 7 which states:

“Regarding the nature and extent of community action, community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the treaty. While respecting community law, care should be taken to respect well established national arrangements and the organisation and working of Member States legal systems. Where appropriate and subject to the need for proper enforcement, community measures should provide Member States with alternative ways to achieve the objectives of the measures.”

[17] I reject the Department’s contention that the interpretation of the requirements of the Directive set out above offends the principle of subsidiarity. The margin of appreciation accorded to Member States must be consistent with securing the aim of the measure and observing the requirements of the Treaty. I am satisfied that the aim of the measures relating to the consultation process is directed to achieving an input from a consultation body which has sufficient expertise and which is independent of the body responsible for the preparation of the plan.

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