Materiality in environmental judicial review
18 November 2013
Gemeinde Altrip et al v. Land Rheinland-Pfalz, CJEU, 7 November 2013 – read judgment
When you challenge a decision in the courts on the basis that it was unlawful, you must show that the wrong is material. The other side may say that the wrong led to no difference in the decision; it would have inevitably have been the same even if the defendant had acted lawfully. The onus is on you the claimant, but it is not at the moment a high one. Only a possibility of a different outcome is enough to get you home and the decision quashed.
This materiality issue was one of the points in this challenge by local landowners to a flood retention scheme affecting some 320 ha of their land in the former Rhine flood plain. The scheme had undergone an environmental impact assessment which the locals said was defective. But did the locals have to show that correcting the defects might have made a difference to the ultimate decision? That was one of the questions which the German federal administrative court referred to the EU Court.
We are again in Aarhus Convention territory, because the Convention led to an amended Environmental Impact Assessment Directive promoting access to justice. The Aarhused provision (Art.10a) told member states to ensure that members of the public had access to a review of the substantive or procedural legality of decisions taken under the Directive. There was a “standing” requirement for such a review; people had to have a “sufficient interest” (which is currently the test in the UK) or (where this was necessary in the local law) be affected by an “impairment of a right” before they could bring the challenge.
The key question posed by the domestic court to the CJEU was whether the Directive precluded German case law which required the claimant to prove that there is a possibility that the decision would have been different and that a substantive legal position is affected thereby.  In the judgment, this is described as the need for a causal link.
The answer of the CJEU is interesting, if tantalising. It points out in  that the need for a causal link is not to be found in the EU’s legislative intent for the Directive, and therefore as a matter of principle, members of the public must be able to invoke any procedural defect on a challenge on EIA grounds: .
Having given with the one hand, it then seems to take away with the other at -: the CJEU said that not every procedural defect will necessarily have consequences that “can possibly affect the purport of a decision” and thus “impair the rights of the party pleading it”. Hence, it may be permissible to decide that such a person does not have standing – remembering that an impairment of such rights is a criterion for standing in Germany, and not in England.
But, and it is an important “but”-
that shifting of the burden of proof onto the person bringing the action, for the application of the condition of causality, is capable of making the exercise of the rights conferred on that person by Directive 85/337 excessively difficult, especially having regard to the complexity of the procedures in question and the technical nature of environmental impact assessments.
So, said the Court, one cannot exclude the possibility of an impairment of a right unless the domestic court can
take the view, without in any way making the burden of proof fall on the applicant, but by relying, where appropriate, on the evidence provided by the developer or the competent authorities and, more generally, on the case-file documents submitted to that court or body, that the contested decision would not have been different without the procedural defect invoked by that applicant – 
– which is a roundabout way of saying that the German system cannot place this burden of proof on the claimant – it can rely on any evidence before the court. The Court regarded this statement in  as being of importance, repeating it in  as part of the formal answer to the question posed by the domestic court.
The tantalising element is how to apply this ruling to the significant number of domestic cases before the UK courts where someone is relying on an inadequate EIA and saying that it invalidates the planning decision. On one reading, because our system currently requires a “sufficient interest” alone rather than an impairment of a right, the general statement of principle in  should apply – any procedural defect can be relied upon, causative or no – rather than the caveat about causation which is applicable only to circumstances when the local system requires an “impairment of a right.” The rival argument is, I suppose, that the UK concept of sufficient interest required for standing may itself involve some test of materiality explicitly or implicitly built into it.
If UK law is as it is at the moment, the fact that formally the onus is upon the claimant may matter little. Our courts are hesitant about making findings that a decision would inevitably have been the same because the hurdle of “a possible different decision” is not difficult to clear, and it is implausible that a judge would rest this decision solely upon where the burden of proof lies.
However, another of Grayling’s proposals for making English (not Scottish) judicial review more difficult for claimants is to raise the standard for materiality from this low one. If so, and if this applies to challenges under this directive, and the closely related one (the Industrial Emissions Directive) concerning environmental permits for industry, he may find that he runs foul of this finding of the European Court. That may well make such a challenge excessively difficult, and thus in breach of European law.
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