The UK Government retains legal ownership and control of all sites made available to the United States Visiting Forces in the UK. The US personnel stationed at e.g. RAF Menwith Hill are there at the invitation of the Government, and are members (or dependants of members) of a visiting force or the civilian component of a visiting force to which Part 1 of the Visiting Forces Act 1952 applies.

The Government does not need to obtain planning permission before allowing a site it owns to be used or developed by the US in a particular way. Removal of Crown Exemption was announced in March 1994 by the Conservative Government but no action was or has been taken by that or the current administration. If however environmental assessment was legally required (see 7 under) then so would a permission: EU law would override the Crown exemption.

This commits the Government to consult planning authorities before proceeding with a development that would otherwise require planning permission. The MoD do this by sending in a “Notice of Proposed Development” which the authority then treats broadly speaking like an ordinary planning application but it has no power to refuse consent. “In any case where strong objections are received …the …authority must decide whether… they should be supported…” (para 21) If the authority objects, the MoD must notify the Department of Transport, Local Government and the Regions which seeks to resolve the dispute and can set up a non-statutory inquiry.

Government policy is that “major development should not take place in (a National Park) save in exceptional circumstances. … applications for such developments must be …rigorous(ly) examin(ed) …” (para 49 Circular 12/96) This involves consideration of “need…, national considerations, cost, scope for developing elsewhere, meeting need in some other way…”

See paragraphs 3 – 10 of opinion obtained by Council for National Parks attached.

Fylingdales: Between 1989 and 1992 the three giant 'golfballs' were replaced by a Phased Array Radar in the form of a 40-meter high truncated pyramid. Presumably planning “permission” was obtained. The US Missile Defence system is likely to involve the construction of an X-band radar alongside the existing radar at RAF Fylingdales: prototype already constructed in Hawaii is 14 storeys high.

The Planning Authority is North York Moors National Park Authority.

Menwith Hill: in March 1997 the UK granted the US permission to construct the the European Relay Ground Station (RGS-E) for the new Space Based Infra-Red System (SBIRS) at Menwith as part of a world-wide satellite based system that will provide early identification of ballistic missile launches. Construction was to include a one-storey 10,000 square feet concrete and steel building and up to four new radomes approximately 60 feet in height and similar to the existing radomes. Two radomes have been built. Planning “consents” have been sought by MoD from Harrogate District Council.

“Planning” applications from 1975 until the end of last year are listed at http://www.gn.apc.org/cndyorks/caab/newsletters/mhprog.htm.

A planning authority will only take account of “material considerations”: these are not defined but have evolved over time: they include e.g. what the development plan says, environmental impact (e.g effects of artificial lighting or electro-magnetic radiation), habitat protection, alternative sites, planning policies, visual amenities, public concerns about safety e.g. if the proposed development would introduce or increase a risk of danger, etc. “Public opposition per se is not a material consideration, even though it may be a powerful background consideration in a democratically based planning system.” [1]

EIAs can be for projects, decisions, programmes and legislation: so far in the UK they are confined to physical projects. Since 1988 the relevant UK regulator must ensure that the environmental impacts of certain physical projects must be assessed and that they must be made subject to a formal consent which cannot be granted without the prior assessment. The principal document will be the developers' statement which others then comment on. Part of the process grants the public rights to comment on the statement. Commonly (but not always) the regulator is the planning authority and the relevant consent is planning permission.

The European Directive that creates our UK requirements specifically excludes " projects serving national defence purposes": Article 1(4). This is carried over into regulation 2(1) Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 which refers to "exempt development" as "development which comprises or forms part of a project serving national defence purposes or in respect of which the Secretary of State has made a direction under regulation 4(4)".

Does Menwith or Fylingdales serve UK national defence purposes or only USA defence purposes: see Opinion para 13. The UK exemption is also wider than permitted as a project that serves both military and civil purposes is not necessarily excluded: see Opinion para 15. EU law interprets exemptions restrictively which would favour these arguments.

If the exemption does apply, DETR Circular 02/99 on EIA, para 157 says "... the MOD will, in appropriate circumstances and subject to considerations affecting national security, provide Environmental Statements in respect of major defence projects." This extra-statutory concession needs exploring.

How are EIAs applied to existing, but developing sites?

If a site was given planning permission before 1988, then no EA has been necessary. However where a project described in the list which was in existence or consented to (before or since 1988) is subsequently "modified" and the modification creates significant environmental impacts then an EA is necessary.

US Environmental Law:National Environmental Policy Act (NEPA) of 1969 and the Council on Environmental Quality regulations (40 CFR Parts 1500-1508) implementing the procedural provisions of NEPA

The US National Environmental Policy Act (NEPA) requires an EIA before a federal decision with significant environmental effects. (In passing, how was the X-band radar in Hawaii dealt with under NEPA?) Non US citizens have relied on this to sue in the US arguing that the legislation has "extra-territorial effect" i.e. applies to US overseas projects. For example:

Environmental Defense Fund v. Massey, 986 F.2d. 528 (D.C. Cir. 1993)

FACTS: Plaintiffs challenged the National Science Foundation's plans to incinerate waste at McMurdo Station in Antarctica, arguing that NEPA applies extraterritorially and thus that NSF should have prepared an EIS. Plaintiffs further alleged that NSF violated Executive Order 12114, requiring the preparation of environmental assessments for US actions which have an impact overseas.

FINDINGS: The Court of Appeals overturned the earlier decision in Environmental Defense Fund v. Massey, 772 F.Supp. 1296 (D.D.C. 1991) which had held that, despite NEPA's broad mandates, there is no clear congressional intent that NEPA should apply beyond the borders of the US and that NEPA did not apply to NSF's decision to build waste incinerators in Antarctica. In this case, the Court of Appeals held that the application of NEPA to federal actions is not limited to actions occurring or having effects in the United States. Rather, NEPA is designed "to control the decision-making process...not the substance of agency decision" that takes place almost exclusively in the United States. The court found that the presumption against extraterritorial application did not apply in this case and held that NEPA did apply to NSF actions in the Antarctic. The court relied upon Antarctica’s unique status as a place which was not a sovereign territory.

see Opinion (below) paras 16 – 20

Opinion obtained by Council for National Parks
IN THE MATTER OF FYLINGDALES
OPINION

1. You have asked me to advise on the "planning" procedures which would need to be followed in relation to proposals to build new radar installations at Fylingdales in the North York Moors National Park.

2. I assume that the development would take place under the auspices of a government department. The ordinary requirements of the 1990 Act (i.e. for planning permission) do not bind the crown: see, for example, MAFF -v- Jenkins [1963] 2 QB 317.

The requirements of Circular 18/84 and Paragraph 56 of Circular 12/96

3. Circular 18/84 describes (in its part 4) the arrangements by which Government Departments consult local planning authorities about their developments. It establishes the Notice of Proposed Development (NoPD) regime and makes it clear (para 25) that the precise procedures will depend on the circumstances of the case (some will be dealt with by written representations, others through a non-statutory public inquiry). Those arrangements have been promoted by the Secretary of State for the Environment as providing, and (subject to any new arguments under the Human Rights Act 1998, below) accepted by the Court as providing, the same protections to objectors as does the statutory planning system: Hillingdon -v- SSE 30th July 1999 (unreported).

4. Given that the development would be in a National Park the provisions of paragraph 56 of Circular 12/96 would also be in play. That paragraph states that:

"… the Government … is … committed to ensuring that new, renewed or intensified use of land in the National Parks for defence purposes should be subject to formal consultation with the National Park Authorities and the Countryside Commission and to an environmental impact assessment, and should be tested against any provisions set out in planning policy guidance."

5. That in effect makes clear that the NoPD process applies to new, renewed or intensified military use of National Parks. It would apply here. It embraces three elements:

a. consultation
b. environmental impact assessment
c. application of PPGs

6. As to b, the language of the circular does not directly tie the "environmental impact assessment" in question to the formal requirements of an ES under the EIA Directive or the domestic implementing regulations.

7. However (in relation to a, b and c), the statement in the circular is expressly a commitment on the part of government to behave in a particular way (either in process terms or in terms of the tests to be applied in deciding whether to proceed).

8. Its effect, in combination with Circular 18/84, has been demonstrated recently in relation to the proposals to build infrastructure for MLRS and AS90 training in the Northumberland National Park. In that case, the MOD produced an ES which complied with (or at least purported to comply with) the formal requirements of the statutory EIA regime. Moreover, the MOD proceeded on the basis that the policy tests under, for example, PPG 7 would be in play.

9. In my opinion, the Circulars and their operation in practice give rise to a "legitimate expectation" that (1) an ES which complied with the requirements of the formal EIA regime would be produced, (2) that the policies of (say) PPG 7 would be applied, and (3) at least the written representations, and probably public inquiry, process would apply.

10. In my opinion, a failure on the part of the Secretary of State to follow that approach in relation to the proposals at Fylingdales would be an unlawful failure to give effect to that legitimate expectation (see, thus: R -v- North and East Devon Health Authority ex parte Coughlan [2000] 3 All ER 850). In my opinion, such a failure could be challenged by way of a judicial review which would have a good prospect of success.

The EIA Directive

11. In any event, in my opinion, the formal requirements of the EIA Directive would appear to apply directly to this case (i.e. regardless of the effect of the Circulars, above). In particular, the Directive applies to all projects unless they are specifically excluded from its terms. The only potentially relevant exception is that in Article 1(4) of the Directive:

"Projects serving national defence purposes are not covered by this Directive"

12. If the Article 1(4) exclusion does not apply, then an EIA would be needed. The fact that the domestic regime (1990 Act and EIA regs) would not require an EIA is irrelevant because the EIA Directive is "directly effective": see Aannemersbedrijf P.K. Kraaijeveld BV -v- Gedeputeerde Staten van Zuid-Holland [1996] E.C.R. I-5403, E.C.J. ("the Dutch dykes case"). In other words, its obligations bite independently of the domestic regime. See thus, for example, R -v- North Yorkshire ex parte Brown [1999] 2 WLR 452 in which the requirement for an ES under the EIA Directive was held to apply to the application of conditions on IDO mineral consents (even though not required by the applicable domestic rules).

13. The question then is whether this project serves national defence purposes. My understanding is that the project involves the construction of radar installations by the US which would then be run by the US and form part of the early warning elements of a missile defence system which protects the US but not the UK. As such, although the project clearly serves a "defence interest", it is not a "national defence interest". Clearly, it would be for the applicable Secretary of State (who was considering permitting the project) to justify reliance on the Article 1(4) exclusion by demonstrating that the defence interest served is a "national" (i.e. UK) interest.

14. On the information presently available to me, in my opinion, a judicial review challenge to a failure to comply with the requirements of the EIA Directive (through the production of a compliant ES) would have a reasonable prospect of success.

15. There is also a high chance that, in such a judicial review, I consider that the court would feel itself unable to resolve the question of whether the Directive applied with "complete confidence"; accordingly, per R -v- International Stock Exchange ex parte Else [1993] QB 534 at 545, the "appropriate course" would be to refer that question to the European Court of Justice in Luxembourg for consideration. Indeed I note that, in WWF -v- Bozen [1999] ECR I-5613, the similar question of whether Article 1(4) excluded from the Directive a project to develop an airport which had joint military and civilian use. The effect would be a delay of several years while the ECJ considered the matter.

The Human Rights Act

Section 6(1) of the Human Rights Act 1998 requires public authorities, including therefore the Secretary (Secretaries) of State involved in this matter to act compatibly with "Convention rights".

16. The Convention right potentially in play here is Article 6 of the European Convention on Human Rights which, so far as is relevant, states:

"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …"

17. The first question is whether a decision to allow the US to proceed with the project would determine civil rights. Clearly, it would not determine CNP's civil rights. However, there is a strong case for saying that it would determine the civil rights of neighbours given that (as I understand the position) the project would be likely to have environmental and property price impacts: Ortenberg -v- Austria (1994) 19 EHRR 524.

18. Such neighbours could thus rely on section 6(1) of the 1998 Act to say that the Secretary of State would act unlawfully if he did not provide an Article 6 compliant procedure for deciding whether or not to permit the project.

19. The House of Lords has recently considered the implications of Article 6 ECHR for "call in" applications and appeals in the planning (and other land development) regimes in Alconbury [2001] UKHL 23,9th May 2001. The House of Lords held that the Secretary of State was entitled to determine such matters; indeed, that it was appropriate for matters of policy and planning judgment embraced within such cases to be determined by the Secretary of State. However, critically for present purposes, in each of those cases, a public inquiry had been held, or would be held, under the auspices of a Planning Inspector who would determine factual disputes and made recommendations on policy and discretion matters. Whether or not that inspector would be sufficiently "independent" in dealing with issues arising from government policy, he or she would be, so the House of Lords held, sufficiently independent for dealing with factual contentions. See thus, Lord Hoffman at paras 108-110, 122 and 128; also Lord Clyde at para 157; also Lord Hutton at para 189. The effect of this for the present case is clear: the Secretary of State could decide to permit the development of Fylingdales, as contemplated. However, he could not do so unless factual disputes (which are inevitable) had first been considered and determined by an inspector following a public inquiry. That process of inquiry and inspector must thus now be seen as a legal prerequisite to a lawful determination by the Secretary of State, particularly where (as here) the applicant for development is another government minister/department, or the land is owned by such a person/department.

20. Thus, in my opinion, there are strong arguments for saying that the Fylingdales project must, at the very least, be subject to the NoPD and the subsequent process (written reps or a public inquiry). In my opinion, on the present state of the law, a judicial review challenge made by a neighbour materially affected (as above) in relation to the Secretary of State's failure to subject the project to at least those processes would have a good prospect of success.

Overall

21. Overall, in my opinion, for the reasons above it would be unlawful for the proposals at Fylingdales to go ahead:

a. without being the subject of an ES within the formal terms of the EIA directive; or

b. without being assessed by reference to the relevant parts of PPGs including, in particular, PPG 7; or

c. without a public inquiry being held under the auspices of an inspector who would determine factual disputes.

David Wolfe
MATRIX

[1] see Planning Encyclopaedia 2-3262 to 3288, esp 2-3282 to 3284