Examination of Witnesses (Questions 3980
- 3999)
3980. MR HORTON: Yes, certainly.
3981. CHAIRMAN: It will save a lot of
time.
3982. MR HORTON: Yes. Thank you very
much.
3983. MR ELVIN: I wonder whether Mr Hackett
has managed, or whether we have managed, to get copies of the
letter I wrote to Mr Meale, the Chairman of the Select Committee.
Firstly, can I invite the Committee to read the annex to that
in time for tomorrow because that actually sets out, in essence,
our position. There is a fundamental flaw in Mr Horton's submissions.
3984. CHAIRMAN: Just a minute, it is
coffee time! We have got this document and, with a cup of coffee
in the other hand, we will read it.
3985. MR ELVIN: I am quite happy to provide
aspirin as well, if that would assist!
3986. CHAIRMAN: Let's adjourn for quarter
of an hour.
After a short break
3987. CHAIRMAN: Mr Elvin?
3988. MR ELVIN: My Lords, my Lady, the
simple point that Mr Horton is running is this: that alternative
B was a main alternative.
3989. CHAIRMAN: We are not concerned
with alternative C, are we?
3990. MR ELVIN: I do not think so. He
is saying that alternative B was a main alternative, it should
have been referred to in the Environmental Statement and that,
because the Environmental Statement, he claims, does not refer
to the main alternative that was studied, it is, therefore, defective
and, therefore, the Bill process is defective. There are a series
of errors which are bound up with that which I will explain at
greater length and I will put in writing for you for tomorrow,
but let me just give you a foretaste.
3991. Firstly, perhaps I can just put up Article
5, my copy, which is the latest version which I got from the Commission's
website.[10]
I will provide a proper copy of the Directive tomorrow. My Lords,
you will see the language and the first flaw in my learned friend's
reasoning is that there is no duty to study alternatives. The
only legal requirement is to give an outline of the main alternatives
studied, so you have to ask yourself two questions: what alternatives
were studied in the process of carrying out the environmental
assessment; and, secondly, what were the main alternatives, if
there is no duty to actually study alternatives? Where there is
a duty to do something, it says so, so, if you look at Article
5(3), and Mr Horton referred you to it, for example, you have
to give a description of the project with all its details. You
have got to give a description of the measures to mitigate. You
have got to give the data to identify and assess the main effects.
If the duty had been to study alternatives—
3992. CHAIRMAN: "An outline of the
main alternatives".
3993. MR ELVIN: Yes, the main alternatives
studied by the developer. If it had been a requirement to study
alternatives, it would have said, "a description of the alternatives
to the project". What it says is "an outline of the
main alternatives studied by the developer", and what this
is is simply a requirement to put into the arena the environmental
information which will allow an informed decision to be made by
the decision-maker, in this case Parliament. It is to show Parliament
that some alternatives, ie the main alternatives, have been considered
and to give a basic set of reasons as to why they were not pursued.
There is no specific requirement to look at any alternatives and
I know of no legal authority from either the European Court or
from this jurisdiction which says that that imposes a duty to
study alternatives as opposed to simply give an account of the
main alternatives which you have in fact studied.
3994. CHAIRMAN: Mr Elvin, this may be
right, but, when it comes to the decision-maker, which in the
normal case would be the local planning authority, they can look
at the alternatives, can they not, and they can say, "Well,
actually we prefer this one and we are not going to grant planning
permission for the other one"?
3995. MR ELVIN: If your Lordship recalls
the principles from his earlier practice, my learned friend is
confusing two things. He is confusing alternatives as a material
planning consideration with the duty with regard to alternatives
under the Directive which is a duty to supply information and
to engage in consultation. It has nothing to do with the substance
of the issue. In planning, as your Lordship may recall, and I
can give your Lordship a recent case in due course, if that will
help, alternatives are not always material considerations to a
planning decision-maker. They may, in some exceptional cases,
be a basis for refusing planning permission, but that has no analogue
in the hybrid Bill process. In the hybrid Bill process, it is
for the Houses of Parliament, acting on the floor of the House,
to decide whether or not to accept the Bill as proffered or whether
to put forward amendments to the Bill in the usual way.
3996. CHAIRMAN: I think that is what
we are being invited to do.
3997. MR ELVIN: Well, my Lord, it would
have been a matter of course for any Member of either House to
have tabled an amendment at Second Reading to say, "You should
not accept—
3998. CHAIRMAN: You cannot table amendments
at Second Reading.
3999. MR ELVIN: I am sorry, I do apologise,
so to table amendments at the appropriate time.
10 Committee Ref: P32: Council Directive 97/11/EC
of 3 March 1997 amending Directive 85/337/EEC on the assessment
of the effects of certain public and private projects on the environment
(SCN-20080312-011) Back
|
