OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 25 January 2018 ( 1 )

Case C‑160/17

Raoul Thybaut,

Johnny De Coster,

Frédéric Romain

v

Région wallonne,

Intervening parties:

Commune d’Orp-Jauche,

Bodymat SA

(Request for a preliminary ruling from the Conseil d’État (Belgium))

(Request for a preliminary ruling — Environment — Directive 2001/42/EC — Assessment of the effects of certain plans and programmes on the environment — Plans and programmes — Definition — Urban land consolidation area — Facilitated derogation from town-planning requirements)

I. Introduction

1. To determine the scope of the directive on the assessment of the effects of certain plans and programmes on the environment ( 2 ) (‘the SEA (Strategic Environmental Assessment) Directive’), the term ‘plans and programmes’ is of central importance. Although the Court has recently provided clarification, ( 3 ) as is also shown by Inter-Environnement Bruxelles and Others (C‑671/16), in which I am also delivering my Opinion today, there are still questions that need to be answered in this context.

2. Thus, in the present preliminary ruling proceedings it must be clarified whether the mere establishment of an ‘urban land consolidation area’ by the Walloon Government is to be regarded as a plan or programme and may therefore require an environmental assessment. That establishment is limited to determining the boundary of the area but, above all, enables a departure from the requirements of certain existing planning measures within that area.

3. Therefore, the Court is also called upon to re-examine its case-law, in accordance with which the repeal of plans or programmes may, as a plan or programme, require an environmental assessment. ( 4 )

4. Finally, when answering the question referred for a preliminary ruling it must be borne in mind that the need for a strategic environmental assessment is also dependent on the types of projects covered by the legislative measure concerned, as the SEA Directive provides for an environmental assessment not only where the plan or programme sets a framework for projects subject to the EIA Directive ( 5 ) (Article 3(2)(a)), but also where a framework is set for other projects that may have significant environmental effects (Article 3(4)), and for plans and programmes that are subject to the specific assessment pursuant to Article 6(3) of the Habitats Directive ( 6 ) (Article 3(2)(b)).

II. Legal framework

A. EU law

5. The objectives of the SEA Directive are set out in particular in Article 1: ‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

6. Plans and programmes are defined in Article 2(a) of the SEA Directive: ‘For the purposes of this Directive: (a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them: – which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and – which are required by legislative, regulatory or administrative provisions’.

7. In the present case, the obligation to carry out a strategic environmental assessment under Article 3(2), (4) and (5) of the SEA Directive is of particular interest: ‘2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive], or (b) which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of the [Habitats Directive]. … 4. Member States shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects. 5. Member States shall determine whether plans or programmes referred to in paragraphs 3 and 4 are likely to have significant environmental effects either through case-by-case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose Member States shall in all cases take into account relevant criteria set out in Annex II, in order to ensure that plans and programmes with likely significant effects on the environment are covered by this Directive.’

B. National law

8. Article 127 of the Code wallon de l’aménagement du territoire, de l’urbanisme et du patrimoine (Walloon Town and Country Planning and Heritage Code) contains rules concerning the relationship between a land consolidation area and development consent. ‘Paragraph 1. By way of derogation from Articles 88, 89, 107 and 109, [development consent] shall be granted by the Government …, … 8. when it concerns measures and works located in an urban land consolidation area; the area shall be determined by the Government; … the area shall cover all urban development plans for renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces; … Paragraph 3. … the consent may be granted in a departure from a sectoral plan, a municipal development plan, local planning rules or an alignment plan.’

9. Article 181 of the Walloon Town and Country Planning and Heritage Code permits the expropriation of immovable property in a land consolidation area: ‘The Government may decree that the expropriation of immovable property is in the public interest, including … 5. in an urban land consolidation area’.

III. Facts and the request for a preliminary ruling

10. Mr Thybaut and Others have brought an action before the Belgian Conseil d’État (Council of State) for annulment of the decree of the Walloon Government of 3 May 2012, which defined, for the village of Orp-Jauche (Walloon Brabant), an ‘urban land consolidation area’ of more than four hectares in size, that comprises, inter alia, the hangars of the former agricultural equipment factory E. de Saint-Hubert.

11. Projects located in such an area benefit, in essence, from a simplified planning consent procedure that may derogate from the planning rules in force, and from a simplified expropriation procedure in which the public interest is presumed. In addition, the municipality is no longer responsible for the development consent. That responsibility now lies with the Walloon Government.

12. A request for an urban land consolidation area must be accompanied by a specific ‘urban development plan’ (demolition and construction of buildings, development of roads and open spaces, etc.), which will form the subject of subsequent, separate planning permission. As the urban land consolidation area has regulatory force without a time limit, not only this project, but all future projects, will benefit from the simplified procedures even if they are not linked to the initial specific urban development plan.

13. In the present case, the ‘urban land consolidation area’ was requested by Bodymat SA, which plans ‘the refurbishment of industrial buildings around a DIY business, a food business and other small complementary businesses … [as well as] housing … [and] a new road linking to the existing road network’.

14. An assessment of the effects of Bodymat SA’s urban development plan on the environment was carried out by an environmental planning and consultancy office.

15. The applicants in the main proceedings are private individuals who live near to the urban land consolidation area. They invoke the SEA Directive and take the view that the assessment carried out in the present case does not satisfy the requirements of the directive since it is incomplete, incorrect and irregular.

16. The Walloon Government believes that it is not the urban land consolidation area that requires an assessment of effects, but rather the urban development plan. In the present case, such an assessment has been carried out for the urban development plan. The administrative authority rightly found that that assessment is complete and provides all of the information necessary to make a decision on the application.

17. Following a request for a preliminary ruling to the Belgian Constitutional Court on whether the establishment of the land consolidation area is compatible with Belgian constitutional law, the Council of State has now referred the following question to the Court: ‘Is Article 2(a) of the SEA Directive to be interpreted as including in the concept of plan or programme an area prescribed by a legislative provision and adopted by a regional authority: – the sole purpose of which is to determine the boundary of a geographical area in which an urban development plan is capable of being carried out, it being understood that this plan, which must pursue a defined objective — in this case concerning renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces — justifies the adoption of the area, which in turn entails acceptance of the principle of this plan, but which must still be subject to planning permission which requires the assessment of effects; – which has the effect, from a procedural point of view, of allowing planning permission applications for measures or works located in this area to benefit from a special procedure, it being understood that the planning rules that were applicable to the land concerned before adoption of the area remain applicable, but that the use of this procedure may allow derogation from these rules to be obtained more easily; – and which enjoys a presumption of public interest for expropriations within the framework of an accompanying expropriation plan?’

18. Mr Thybaut and Others, Bodymat SA, the Kingdom of Belgium and the European Commission have submitted written observations and presented oral argument at the hearing on 30 November 2017 which concerned both the present case and Case C‑671/16, Inter-Environnement Bruxelles and Others. The Kingdom of Denmark also participated at that hearing.

IV. Legal assessment

19. In order to answer the question referred for a preliminary ruling, it is necessary first to consider briefly the ‘definition’ of plans and programmes given in Article 2(a) of the SEA Directive and then to examine the Court’s interpretation of those two terms.

A. The definition contained in Article 2(a) of the SEA Directive

20. Article 2(a) of the SEA Directive states that the term ‘plans and programmes’ means plans and programmes as well as any modifications to them that, first, are subject to preparation and/or adoption by an authority at national, regional or local level or that are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and that, secondly, are required by legislative, regulatory or administrative provisions.

21. It is clear not least from the wording of the Council of State’s question that it has no doubt as to those two conditions as, in accordance with the provision, the decision determining the area in question was adopted by a regional authority, namely the Région wallonne, and therefore the first condition is satisfied. As regards the second condition, although a requirement to determine the area concerned is not indicated, it is sufficient in that regard that a measure is regulated by national legislative or regulatory provisions that determine the competent authorities for adopting them and the procedure for preparing them. ( 7 ) According to the question referred, the area is established by legislative provision. This provision, Article 127(1)(8) of the Walloon Town and Country Planning and Heritage Code, also determines the competent authorities and the procedure.

B. The substantive requirements relating to plans and programmes

22. In reality, the Council of State is seeking to establish whether the legal consequences of determining an urban land consolidation area are sufficient for it to be regarded as a plan or a programme within the meaning of the SEA Directive. This question gives the Court an opportunity to apply its recently developed interpretation of the term ‘plans and programmes’ to a new situation.

23. In accordance with that interpretation, ‘plans and programmes’‘relate … to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment’. ( 8 )

24. With regard to that interpretation, in my Opinion delivered today in Case C‑671/16, Inter-Environnement Bruxelles, I demonstrate that, when assessing whether a plan or a programme within the meaning of Article 2(a) of the SEA Directive exists, it is necessary to ascertain whether the specifications in the measure in question are likely to have significant effects on the environment. ( 9 )

25. In the present case, it would be for the Council of State to determine whether the urban land consolidation area at issue satisfies those criteria.

26. When making that assessment, at first glance, it appears to be significant that the establishment of an urban land consolidation area does not expressly contain actual criteria and detailed rules for the grant and implementation of plans, but merely defines an area. This may preclude the possibility that the establishment of an urban land consolidation area may have significant effects on the environment.

27. What is more, two of the three special rules that apply within that area, namely the change in who is responsible for granting consent and the possibility to expropriate land, are not, in themselves, capable of causing significant effects on the environment.

28. However, the third special rule for urban land consolidation areas is different in nature. Pursuant to Article 127(3) of the Walloon Town and Country Planning and Heritage Code, consent for projects in an urban land consolidation area may be granted in a departure from existing planning requirements. The third rule mentions in this respect sectoral plans, municipal development plans, local planning rules and alignment plans.

29. Enabling a derogation from existing requirements is similar to repealing those requirements as, by establishing an urban land consolidation area, projects that have significant effects on the environment and that previously conflicted with the requirements contained in existing plans may, in principle, be implemented in that area. Those requirements might be, for instance, restrictions on building size or land use that must no longer be observed.

30. This constitutes, albeit indirectly, a potentially significant number of criteria and detailed rules for the grant and implementation of projects. Consequently, the land in question will be attractive for a variety of projects that are reliant upon derogations from existing planning requirements.

31. In respect of the repeal of plans and programmes, the Court has already held that, in light of the characteristics and the effects of the measures repealing a plan or programme, to regard those measures as excluded from the scope of the SEA Directive would be contrary to the objectives pursued by the European Union legislature and would be such as to compromise, in part, the practical effect of the directive ( 10 ) as, by removing the requirements of a plan or programme, the framework for future development consent of projects will also be significantly affected. ( 11 ) These considerations apply equally to the possibility of derogating from existing planning requirements.

32. Indeed, the establishment of an urban land consolidation area does not in itself mean that projects that exhaust existing possibilities for impacting the environment will actually be implemented. On the contrary, only where subsequent projects are given consent is it possible to assess the environmental effects specifically. However, ultimately, this consideration applies to all requirements of plans and programmes: they confer only the possibility of effects on the environment, which may be realised by specific projects. The legislature clearly took the view, however, that this potential type of planning and programme requirements does not preclude an environmental assessment.

33. I am therefore also unconvinced by the argument put forward by Belgium and Bodymat that it is still not entirely clear which environmental effects should be assessed.

34. It is true that an environmental assessment of the establishment of an urban land consolidation area cannot ensure that the subsequent effects on the environment that in fact occur are measured precisely. The possibilities to derogate from planning requirements are certainly not limited to a specific project the effects of which may have already been assessed, rather all future projects implemented in that area will benefit, including projects that cannot yet be anticipated.

35. However, at the least, on the basis of the conditions in the area and the technical framework, an environmental assessment can attempt to describe the environmental effects that are realistically possible if projects that would no longer be restricted by existing planning requirements were to be implemented. This approach would contribute significantly to transparency because it would force authorities to clarify which future developments they permit through the establishment of the urban land consolidation area.

36. Finally, classification of an urban land consolidation area as a plan or programme is also not precluded by the fact that, in principle, it would be possible to consider any derogation from existing planning requirements fully in the context of an assessment of subsequent projects under the EIA Directive.

37. The initiative for the adoption of the SEA Directive is based on the understanding that certain environmental effects exist at the time of the assessment under the EIA Directive not least because of previous planning decisions, which, irrespective of the results of the assessment, can no longer be called into question when making a decision on the project. ( 12 ) However, it must not be concluded from this that the environmental assessment under the SEA Directive would not be necessary if all specifications may be examined and assessed when applying the EIA Directive.

38. First, EU law at any rate does not guarantee that every conceivable project must be assessed under the EIA Directive. Only the project types set out in Annexes I and II to the EIA Directive fall within the scope of that directive. By contrast, Article 3(2)(b) and 3(4) of the SEA Directive also provides that plans and programmes that are not necessarily related to projects subject to the EIA Directive are to be assessed.

39. Secondly, the environmental assessment should be carried out at the earliest possible stage so that the results of that assessment are still capable of influencing any decisions. This objective is laid down not only in Article 6(2) of the SEA Directive, but also in Articles 8(1) and 9(2) of the Kiev Protocol, ( 13 ) in the seventh recital and Article 3(1) of the Espoo Convention, ( 14 ) in Article 6(4) of the Aarhus Convention ( 15 ) and in recital 2 of the EIA Directive. ( 16 )

40. Thirdly, any juxtaposition of assessments under both directives does not mean that superfluous double assessments are necessary. Rather, the results of the first assessment under Article 11(2) of the SEA Directive may (and should) be re-used in the context of the second assessment, at least in so far as they are (still) meaningful to that second assessment. ( 17 )

41. However, whether or not the establishment of an urban land consolidation area must in fact be regarded as significant within the meaning of the judgment in D’Oultrement depends on the requirements laid down in the existing plans from which a derogation is possible. The greater those requirements, the more significant the possibility of derogation becomes.

42. The national court must therefore examine whether the existing planning requirements, from which a derogation is possible, preclude projects that would be likely to have significant effects on the environment in the light of the specific local situation.

V. Conclusion

43. I therefore propose that the Court rule as follows: A legal measure that permits derogation from town-planning requirements for certain plans when granting consent for projects within a certain area must be regarded as a plan or programme within the meaning of Article 2(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment where the existing planning requirements, from which a derogation is possible, preclude projects that would be likely to have significant effects on the environment in the light of the specific local situation.

( 1 ) Original language: German.

( 2 ) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 (OJ 2001 L 197, p. 30).

( 3 ) Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 49).

( 4 ) Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 39 et seq.).

( 5 ) Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as last amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1).

( 6 ) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as last amended by Council Directive 2013/17/EU of 13 May 2013 adapting certain directives in the field of environment, by reason of the accession of the Republic of Croatia (OJ 2013 L 158, p. 193).

( 7 ) Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 31).

( 8 ) Judgment of 27 October 2016, D’Oultremont and Others (C‑290/15, EU:C:2016:816, paragraph 49).

( 9 ) See points 18 to 27 of my Opinion in Case C‑671/16 (Inter-Environnement Bruxelles).

( 10 ) Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 41).

( 11 ) Judgment of 22 March 2012, Inter-Environnement Bruxelles and Others (C‑567/10, EU:C:2012:159, paragraph 39).

( 12 ) Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment (COM(96) 511 final, p. 6). See, in this regard, my Opinion in Joined Cases Terre wallonne and Inter-Environnement Wallonie (C‑105/09 and C‑110/09, EU:C:2010:120, points 31 and 32) and my Opinion delivered today in Inter-Environnement Bruxelles and Others (C‑671/16, points 43 and 44).

( 13 ) 2003 Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (OJ 2008 L 308 p. 35), adopted by Council Decision 2008/871/EC of 20 October 2008 (OJ 2008 L 308, p. 33).

( 14 ) 1991 Convention on Environmental Impact Assessment in a Transboundary Context (OJ 1992 C 104, p. 7); according to the Proposal for a Council Decision on the approval – on behalf of the European Community – of the first and the second amendments to the UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context (COM[2007] 470 final), the Community approved that convention, on 27 June 1997, by way of an unpublished Council Decision which appears to be dated 15 October 1996 (see the proposal for the first Council Decision in OJ 1992 C 104, p. 5).

( 15 ) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (OJ 2005 L 124, p. 4), approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).

( 16 ) See also my Opinion in the Joined Cases Comune di Corridonia and Others (C‑196/16 and C‑197/16, EU:C:2017:249, points 25 and 26).

( 17 ) See judgments of 22 September 2011, Valčiukienė and Others (C‑295/10, EU:C:2011:608, paragraphs 61 and 62) and 10 September 2015, Dimos Kropias Attikis (C‑473/14, EU:C:2015:582, paragraph 58).