Examination of Witnesses (Questions 4040
- 4059)
4040. MR ELVIN: No. The position of the
Directive is exactly the same.
4041. CHAIRMAN: But it will be the Directive
that we look at.
4042. MR ELVIN: It will be the Directive
and you substitute "Parliament" for the planning authority,
because of course the way that the courts have approached this
is that they take the planning regulations and they construe them
side by side with the Directive to which they give effect, and
that is the standard approach to construction these days with
instruments transposing European legislation.
4043. CHAIRMAN: But not to the extent
that the Regulations expand upon the Directive.
4044. MR ELVIN: It is just to make sure
that they are construed so that they give effect to the Directive.
4045. Your Lordships ought to know that the
Blewett case went to the Court of Appeal—this issue
was not challenged before the Court of Appeal, it went to the
court on another issue. My submission is that the position that
Mr Justice Ouseley set out is one which is common to the judges
of the Administrative Court considering Environmental Statements.
So your Lordship sees from that very clear statement by Mr Justice
Sullivan who, as your Lordship will know, is a very experienced
planning judge that—
4046. CHAIRMAN: All three of them are.
4047. MR ELVIN: All three of them are,
indeed. It illustrates the fact that even if a flaw were identified
that does not invalidate the environmental assessment process,
and I rely very much on what Mr Justice Sullivan there says.
4048. So my position is this. There was no duty
to consider alignment B; in any event, it was not a main alternative,
the main alternatives are set out in chapter 6. In any event,
we dealt very briefly with the southern alignment in SES 3. Finally,
even if there were a flaw, as Mr Justice Sullivan says, every
flaw does not invalidate the Environmental Statement, and your
Lordships have to look at that, with respect, against the backdrop
of the project as a whole and the vast amount of information which
has been made available through the Environmental Impact Assessment
process, and in my submission your Lordships would be entirely
right to reject these submissions on any of the grounds that I
have advanced.
4049. CHAIRMAN: Anyway, we look at it
as if we were the planning authority.
4050. MR ELVIN: Parliament is in the
same position as the planning authority, yes.
4051. My Lord, can I just make this point on
the transcript? I am not sure I got it entirely right on my feet
and can I ask you to substitute what I said at paragraph 2925
of the transcript on 10 March with what is in paragraph 52 of
my note? That is to say, as with the Select Committee below it
is entirely a matter for your Lordships whether you choose to
advise Parliament as to whether there is a flaw in the Environmental
Assessment process, but it is a matter of course for the House
to decide whether or not that is so. It is for Parliament acting
as a whole.
4052. CHAIRMAN: That was the very point
that I was seeking to make earlier, Mr Elvin—presumably
on the facts as they are to date? Is it a continuing process?
If we want to advise the House on this would we advise them on
the facts as they are to date?
4053. MR ELVIN: You have to ask yourself
the question did the Environmental Statement comply with the duty?
And if it did not comply with the duty what must then be done?
The adequacy of the statement is judged at the time that development
consent is granted and I suppose technically the grant of development
consent does not come until the Queen signs the Act.
4054. CHAIRMAN: Precisely, so we continue
to look at the factual situation up to Royal Assent.
4055. MR ELVIN: And the information can
be supplemented, as indeed we have done—as you know, we
have four sets of additional provisions, Environmental Statements
and a similar number of supplementary Environmental Statements;
the information has been supplemented. But, of course, if a new
Environmental Statement were to be required there would have to
be further consultation because one of the key requirements of
the Directive is public consultation. It would probably require
an amendment to Clause 10 of the Bill and it would probably require
a further petitioning period.
4056. CHAIRMAN: Yes, I am not afraid
of any of these things.
4057. MR ELVIN: I am merely answering
your Lordship's question as to what the position would be.
4058. CHAIRMAN: It is the timetable,
as it were, that I am interested in. We would be advising the
House as a whole that they ought to look at the point of law on
the facts as they stand at the re-committal stage; is that right?
4059. MR ELVIN: Indeed, absolutely, because
it is the point at which the decision is made when you judge the
adequacy of the Environmental Statement.
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