Thybaut and Others (Environment - Assessment of the effects of certain plans and programmes on the environment - Judgment) [2018] EUECJ C-160/17 (07 June 2018)

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(Reference for a preliminary ruling — Environment — Directive 2001/42/EC — Article 2(a) — Concept of ‘plans and programmes’ — Article 3 — Assessment of the effects of certain plans and programmes on the environment — Urban land consolidation area — Possibility of derogating from town planning requirements — Modification of the ‘plans and programmes’)

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium) made by decision of 2 February 2015, received at the Court on 1 March 2017, in the proceedings

composed of M. Ilešič, President of the Chamber, A. Rosas, C. Toader (Rapporteur), A. Prechal and E. Jarašiūnas, Judges,

having regard to the written procedure and further to the hearing on 30 November 2017,

– the Belgian Government, by M. Jacobs, L. Van den Broeck and J. Van Holm, acting as Agents, and by B. Hendrickx, avocate,

– the European Commission, by C. Hermes, F. Thiran and C. Zadra, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 January 2018,

1 This request for a preliminary ruling concerns the interpretation of Article 2(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30) (‘the SEA Directive’).

2 The request has been made in proceedings between Mr Raoul Thybaut, Mr Johnny De Coster and Mr Frédéric Romain, on the one hand, and, on the other, the Région wallonne (the Walloon Region) concerning the validity of an order of the Government of that region of 3 May 2012 defining an urban land consolidation area in respect of a district of the Orp-Jauche municipality (Belgium) (Moniteur belge of 22 May 2012, p. 29488; ‘the contested order’).

‘Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.’

‘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.’

(a) “plans and programmes” shall mean plans and programmes, including those co-financed by the European [Union], 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

(b) “environmental assessment” shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4 to 9;

‘1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.

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 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)], ….

3. Plans and programmes referred to in paragraph 2 which determine the use of small areas at local level and minor modifications to plans and programmes referred to in paragraph 2 shall require an environmental assessment only where the Member States determine that they are likely to have significant environmental effects.

7 Article 5 of the SEA Directive, entitled ‘Environmental report’, states, in paragraph 3:

‘Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision-making or through other Community legislation may be used for providing the information referred to in Annex I.’

‘1. The draft plan or programme and the environmental report prepared in accordance with Article 5 shall be made available to the authorities referred to in paragraph 3 of this Article and the public.

2. The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.

3. Member States shall designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes.

4. Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned.

5. The detailed arrangements for the information and consultation of the authorities and the public shall be determined by the Member States.’

9 Article 11 of the SEA Directive, entitled ‘Relationship with other Community legislation’, states, in paragraph 1:

‘An environmental assessment carried out under this Directive shall be without prejudice to any requirements under Directive [85/337] and to any other Community law requirements.’

10 Under Article 4(2) of Directive 2011/92 (‘the EIA Directive’), Member States are required to determine whether projects listed in Annex II to that directive are to be made subject to an assessment in accordance with Articles 5 to 10 thereof. Under Part 10 of that annex, entitled ‘Infrastructure projects’, subparagraph (b) includes ‘urban development projects, including the construction of shopping centres and car parks’ among those projects.

11 Article 1(3) of the Code wallon de l’aménagement du territoire, de l’urbanisme, du patrimoine et de l’énergie (Walloon Town and Country Planning and Heritage Code), in the version applicable at the material time (‘the Walloon Code’), provides:

‘Town and country planning shall be governed by the following plans and regulations:

‘(1) … [planning] consent shall be granted by the Government or a delegated official:

8° when it concerns measures and works located within an urban land consolidation area; the area shall be determined by the Government by way of order, either on its own initiative or following a proposal from the municipal council or from the delegated official; unless the municipal council has proposed the area, it shall send its decision within 45 days from the request of the delegated official; in the absence of a decision, the decision shall be deemed to be favourable; in the event of an unfavourable decision, the procedure shall be discontinued; 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; the special notice measures and consultation with any municipal commission, in accordance with Article 4, shall first apply to the draft decision in relation to the area and the assessment of its effects in regard to the urban development plan; the council of the mayor and aldermen shall send its decision within 70 days of receipt of the request of the delegated official; in the absence of a decision, the decision shall be deemed to be favourable; once the project has been completed, or on a proposal from the municipal council or the delegated official, the Government shall repeal or amend the area; any order determining, amending or repealing an area shall be published in the Moniteur belge;

(3) Provided that the request has already been subject to the special rules on publicity determined by the Government and to the mandatory consultation referred to in point 3° of the first paragraph of Article 4, where the request concerns the measures and works mentioned in points 1°, 2°, 4°, 5°, 7° and 8° of the first paragraph of Article 127(1) which respect, structure or change the natural contours of the landscape, the permission may be granted in a departure from the sectoral plan, a municipal development plan, local planning rules or an alignment plan.’

‘The Government may decree that the expropriation of immovable property is in the public interest, including:

Paragraphs 3 to 6 of Article 58 may be applied to an urban land consolidation area, notwithstanding the absence of a municipal development plan.’

‘The following authorities shall be empowered to expropriate property: the Region, the provinces, the municipalities, autonomous municipal authorities, intermunicipal associations formed for the purposes of town and country planning or housing and public institutions and organisations and bodies permitted by a law or an order to expropriate in the public interest.

Where the expropriation under consideration is intended to develop a part of the area to be granted planning permission in plots or planning permission for the construction of buildings designed for residential or business purposes, the owner or owners of more than half of the surface area of the land concerned by that area shall be entitled to request to be entrusted, in accordance with the time limits and conditions set by the expropriating authority, provided that they have the necessary financial capabilities, with completion of the work envisaged by the development as well as with the dividing out of plots and land consolidation.

That request, if it is not to be out of time, must be lodged within three months of the publication in the Moniteur Belge of the Government order approving the expropriation plan.

Where expropriation is designed to develop a part of the area intended for a particular use under point 2° of the first paragraph of Article 49, the owner or the owners may, in accordance with the above conditions, request that they be entrusted with completion of the development works.’

The dispute in the main proceedings and the question referred for a preliminary ruling

15 On 27 April 2009, the Ministre wallon du Logement, des Transports et du Développement territorial (Walloon Minister for Housing, Transport and Territorial Development, Belgium) issued an order for an urban land consolidation area (‘the consolidation area’) concerning the centre of Orp-le-Petit, a village within the municipality of Orp-Jauche (Belgium). Following three actions brought against that order, the Conseil d’État (Council of State, Belgium) annulled that order by judgment of 3 June 2010.

16 Following that annulment, a new project for the consolidation area intended to cover 40 000 m² was lodged by Bodymat. That company proposed to ‘renovate’ the former industrial buildings situated in the centre of Orp-le-Petit into a DIY business, a food business as well as other small complementary businesses, and for that shopping centre to be supplemented by ‘interconnected housing’, a new road linked to the existing road network and a car park.

17 It is clear from the contested order that the consolidation area project included an environmental impact assessment carried out in the form of an impact study by an environmental planning and consultancy office.

18 At a meeting of 22 December 2010, the Orp-Jauche municipal council adopted the consolidation area in respect of the centre of Orp-le-Petit and forwarded the entire case file relating to that area to the fonctionnaire délégué (delegated official, Belgium) in order that the procedure for its finalisation could be continued in accordance with point 8 of the first paragraph of Article 127(1) of the Walloon Code.

19 By decision of 6 June 2011, the delegated official proposed that the consolidation area be adopted.

20 On 3 May 2012, the Gouvernement wallon (Walloon Government, Belgium) approved the consolidation area at issue by way of the contested order.

21 The applicants in the main proceedings, who are private individuals living near to the area affected by that consolidation area, brought an action before the Conseil d’État (Council of State) seeking annulment of the contested order. They maintain that the environmental impact study carried out in the present case does not satisfy the requirements of the SEA Directive in that it is incomplete, incorrect and irregular. They take the view that a consolidation area comes within the concept of ‘plans and programmes’ within the meaning of that directive and that the directive was not correctly transposed into Belgian law.

22 In reply, Bodymat, an intervening party in the main proceedings, claims that the sole purpose of a consolidation area is to determine the boundaries of an area and that it is not included within the instruments that require an assessment of the effects on the environment laid down in the SEA Directive.

23 The referring court takes the view that the nature and scope of a consolidation area must first be ascertained before it can decide whether the action in the main proceedings is well founded.

24 That court points out that the sole purpose of a consolidation area is to determine the boundaries of a geographical area in which an ‘urban development plan for renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces’ is capable of being realised.

25 The referring court also indicates that a consolidation area differs from an urban development plan, even though the latter constitutes a condition for the adoption of a consolidation area. Consequently, an urban development plan could, following the adoption of a consolidation area, be amended or adapted, but would continue to require an environmental impact assessment in accordance with the applicable legislation.

26 Following those considerations, the referring court set out the legal consequences entailed by the adoption of a consolidation area. In the first place, the authority empowered to issue planning permissions is different. In the second place, Article 127(3) of the Walloon Code provides that the planning permission given for the land within the area thereby defined may depart from the sectoral plan, the municipal development plan, local planning rules or an alignment plan. In the third place, the Walloon Government may, upon the terms set out in the Walloon Code, decree that expropriation of immovable property within a consolidation area is in the public interest.

27 That court states that the potential nuisance feared by the applicants in the main proceedings could occur only if the urban development plan were carried out. However, according to the court, the contested order does not in itself authorise that project, since the project must be given separate authorisations, at the time of which an impact assessment would be required. The referring court notes, however, that the contested order would be a prerequisite necessary for the project to be carried out. If a consolidation area were adopted, the authorisations in respect of the underlying urban development plan could be granted pursuant to the procedure specifically provided for in the Walloon Code.

28 Thus, according to the referring court, the adoption of a consolidation area consequently amends the legal process, since the consolidation area allows for the development of a district according to a special procedure, likely to prejudice persons such as the applicants in the main proceedings.

29 At the same time, the referring court harbours doubts, albeit for different reasons, as to the conformity of point 8 of Article 127(1) of the Walloon Code with both the Belgian Constitution and EU law.

30 In those circumstances, the referring court decided to stay the proceedings and, by the same decision, to ask the Cour constitutionnelle (Constitutional Court, Belgium) and the Court, respectively, whether the legislation at issue in the main proceedings is unconstitutional under Belgian law and whether the consolidation area is a plan or a programme, within the meaning of the SEA Directive, whilst nevertheless specifying that the question requesting the Court to deliver a preliminary ruling would be referred to only if the Cour constitutionnelle (Constitutional Court) were to rule that that legislation is compliant with the Belgian Constitution.

31 By judgment of 16 June 2016, the Cour constitutionnelle (Constitutional Court) held that point 8 of the first paragraph of Article 127(1), Article 127(3), point 5 of the first paragraph of Article 181 and the fourth paragraph of Article 181 of the Walloon Code are not at variance with the Belgian Constitution, provided that the ‘derogating provisions permitted under Article 127(3) [are interpreted] strictly and [that] their application [is] sufficiently justified, despite the fact that the legislature making the order did not specify in the provision in question, as regards the permission granted in respect of a consolidation area, that those derogations may be granted only in exceptional circumstances’.

32 Following the delivery of that judgment, the Conseil d’État (Council of State) referred to the Court the intended question for a preliminary ruling.

33 The question referred to the Court for a preliminary ruling is worded as follows:

‘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; and

– 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?’

34 It must be stated at the outset that, although the question referred concerns solely Article 2(a) of the SEA Directive, as several of those participating in the proceedings before the Court maintain, the referring court, by its request for a preliminary ruling, seeks as much to determine whether a consolidation area, such as that at issue in the main proceedings, comes within the definition of ‘plans and programmes’, within the meaning of that provision, as to know whether such an instrument requires an environmental impact assessment within the meaning of Article 3 of that directive.

35 The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude this Court from providing the national court with all the elements of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute (judgment of 22 June 2017, E.ON Biofor Sverige, C‑549/15, EU:C:2017:490, paragraph 72 and the case-law cited).

36 In that regard, Article 3(2) of the SEA Directive lays down the rule that an environmental assessment must be carried out for all plans and programmes referred to in that provision, whereas the exception in Article 3(3) of that directive subjects such an assessment to the condition that Member States have determined whether the plans and programmes covered by Article 3(2) are likely to have significant environmental effects (see, to that effect, judgment of 18 April 2013, L, C‑463/11, EU:C:2013:247, paragraph 32).

37 The question referred should therefore be construed as asking, in essence, whether Article 2(a) and Article 3 of the SEA Directive must be interpreted as meaning that a consolidation area, such as that at issue in the main proceedings, the sole purpose of which is to determine a geographical area in which an urban development plan may be carried out with the objective of renovating and developing urban functions requiring the creation, modification, removal or overhang of roads and public spaces in carrying out that plan, in respect of which it will be permissible to derogate from certain planning requirements, comes within the concept of ‘plans and programmes’ likely to have significant effects on the environment within the meaning of that directive, and must therefore be subject to an environmental impact assessment.

38 As a preliminary matter, the Court notes that, as is clear from recital 4 of the SEA Directive, environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes.

39 Next, under Article 1, the objective of the SEA 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 that directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment (judgment of 21 December 2016, Associazione Italia Nostra Onlus, C‑444/15, EU:C:2016:978, paragraph 47).

40 Lastly, given the objective of the SEA Directive, which is to provide for such a high level of protection of the environment, the provisions which delimit the scope of the directive, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly (judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 40 and the case-law cited).

41 It is in the light of the foregoing considerations that the question referred must be answered.

42 In the first place, Article 2(a) of the SEA Directive defines the ‘plans and programmes’ to which it refers as being those which satisfy two cumulative conditions, namely, first, that they have been subject to preparation and/or adoption by an authority at national, regional or local level or prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and, secondly, that they are required by legislative, regulatory or administrative provisions.

43 The Court has interpreted that provision as meaning that plans and programmes the adoption of which is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as being ‘required’ within the meaning, and for the application, of the SEA Directive and, accordingly, must be subject to an assessment of their environmental effects in the circumstances which it lays down (judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C‑567/10, EU:C:2012:159, paragraph 31).

44 In the present case, it can be inferred from the findings of the referring court that the contested order was adopted by a regional authority on the basis of Article 127 of the Walloon Code.

45 It follows that the conditions referred to in paragraph 42 above are satisfied.

46 In the second place, Article 3(2)(a) of the SEA Directive provides that a systematic environmental assessment is to be carried out for all plans and programmes which, first, are prepared for certain sectors and, second, set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive (see, to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 43).

47 As regards the first of those conditions, it is clear from the wording of Article 3(2)(a) of the SEA Directive that that provision covers, inter alia, the sector of ‘town and country planning or land use’.

48 The fact that that provision refers both to ‘town and country planning’ and to ‘land use’ indicates clearly that the targeted sector is not confined to land use stricto sensu, namely the division of an area into zones and the determination of the activities permitted within those zones, but that that sector is necessarily broader in its scope.

49 A consolidation area, such as that at issue in the main proceedings, due both to the manner in which it is defined and to its purpose, which is to allow for derogation from the planning requirements for plans concerning buildings and town and country planning, comes within the ‘town and country planning or land use’ sector within the meaning of Article 3(2)(a) of the directive.

50 As regards the second of the conditions mentioned in paragraph 46 above, in order to ascertain whether a consolidation area, such as that at issue in the main proceedings, sets the framework for future development consent of projects listed in Annexes I and II to the EIA Directive, it is necessary to examine the content and purpose of that instrument, taking into account the scope of the environmental assessment of projects as provided for by that directive (see, to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie, C‑105/09 and C‑110/09, EU:C:2010:355, paragraph 45).

51 Infrastructure projects feature among the projects listed in Annex II to the EIA Directive, under Part 10 thereof, which include urban development projects in subparagraph (b) of that part.

52 It follows from the wording of Article 127 of the Walloon Code that the purpose of a consolidation area, such as that at issue in the main proceedings, is to determine the boundaries of a geographical area in which ‘urban development plans for renovation and development of urban functions requiring the creation, modification, extension, removal or overhang of roads and public spaces’ are capable of being carried out.

53 Thus, having regard to its content and purpose, such an instrument, in so far as it posits that infrastructure projects will be carried out, in general, and urban development projects, in particular, contributes to the implementation of the projects listed in that annex.

54 As to whether an instrument, such as the contested instrument, sets the framework for future development consent of projects, it should be noted that the Court has previously held that the notion of ‘plans and programmes’ relates 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 (judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 49 and the case-law cited).

55 In that regard, the concept of ‘a significant body of criteria and detailed rules’ must be understood qualitatively and not quantitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgment of 27 October 2016, D’Oultremont and Others, C‑290/15, EU:C:2016:816, paragraph 48 and the case-law cited).

56 In the present case, it is clear from the findings of the referring court that, although a consolidation area, such as that at issue in the main proceedings, does not in itself lay down any positive requirements, it does, however, allow for derogation from existing requirements for plans. That court has made it clear that determining the boundaries of the consolidation area in the contested order amounts to accepting the principle of a future urban development plan, which will be able to be carried out by means of derogations from the planning requirements in force being granted more easily. It has noted in that context that, under Article 127(3) of the Walloon Code and the requirements laid down by it, planning permissions given for the geographical area within a consolidation area may depart from the sectoral plan, a municipal development plan and local planning rules.

57 In that regard, in so far as a sectoral plan, a municipal development plan and local planning rules are themselves plans and programmes within the meaning of the SEA Directive, a consolidation area, such as that at issue in the main proceedings, given that it amends the framework laid down by those plans, must also be characterised as such and be subject to the same rules of law.

58 It follows that, although such an instrument does not, and cannot, lay down positive requirements, the possibility which it lays down of allowing a derogation from the planning rules in force to be obtained more easily amends the legal process and consequently brings the consolidation area at issue in the main proceedings within the scope of Article 2(a) and Article 3(2)(a) of the SEA Directive.

59 Having regard to those factors, which it nevertheless remains a matter for the referring court to verify and to assess their significance in respect of the instrument in question, it must be held that an instrument, such as that at issue in the main proceedings, comes within the concept of ‘plans and programmes’, within the meaning of Article 2(a), Article 3(1) and Article 3(2) of the SEA Directive, and must be subject to an environmental impact assessment.

60 In the third and final place, the referring court states that, although determining the boundaries of a consolidation area involves acceptance of the principle of an urban development plan, the latter will, however, still be subject to planning permission which will require an impact assessment within the meaning of the EIA Directive.

61 The Court notes that the fundamental objective of the SEA Directive is to ensure that ‘plans and programmes’ which are likely to have significant effects on the environment are subject to an environmental assessment when they are prepared and prior to their adoption (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C‑41/11, EU:C:2012:103, paragraph 40 and the case-law cited).

62 In that regard, as the Advocate General stated in point 39 of her Opinion, it is clear from Article 6(2) of the SEA Directive that 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. It is indeed at that stage that the various elements of an alternative may be analysed and strategic choices made.

63 In addition, although Article 5(3) of the SEA Directive provides for the possibility of using relevant information obtained at other levels of decision-making or through other EU legislation, Article 11(1) of that directive specifies that an environmental assessment carried out under that directive is to be without prejudice to any requirements under the EIA Directive.

64 Furthermore, an assessment of the effects on the environment carried out under the EIA Directive cannot lead to an exemption from the obligation to carry out the environmental assessment required by the SEA Directive for the purposes of addressing the environmental aspects particular to the SEA Directive.

65 In so far as an order, such as that at issue in the main proceedings, entails, as set out in paragraph 58 above, a change in the legal framework of reference which offers, without any conditions, the possibility of departing from the planning rules in respect of all projects subsequently carried out in the relevant geographical area, that possibility is liable to have significant effects on the environment. Thus, subject to the verifications which the referring court must carry out, an alteration in the effects assessed in advance makes a new environmental impact assessment necessary.

66 Such a finding safeguards the practical effect of the SEA Directive by ensuring that any possible significant effects on the environment are subject to an environmental assessment.

67 In the light of the foregoing considerations, the answer to the question referred is that Article 2(a), Article 3(1) and Article 3(2)(a) of the SEA Directive must be interpreted as meaning that an order adopting a consolidation area, the sole purpose of which is to determine a geographical area within which an urban development plan may be carried out with the objective of renovating and developing urban functions and requiring the creation, modification, removal or overhang of roads and public spaces in carrying out that plan, in respect of which it will be permissible to derogate from certain planning requirements, comes, because of that possibility of derogation, within the concept of ‘plans and programmes’ likely to have significant effects on the environment within the meaning of that directive, thereby necessitating an environmental assessment.

68 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 2(a), Article 3(1) and Article 3(2)(a) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment must be interpreted as meaning that an order adopting an urban land consolidation area, the sole purpose of which is to determine a geographical area within which an urban development plan may be carried out with the objective of renovating and developing urban functions and requiring the creation, modification, removal or overhang of roads and public spaces in carrying out that plan, in respect of which it will be permissible to derogate from certain planning requirements, comes, because of that possibility of derogation, within the concept of ‘plans and programmes’ likely to have significant effects on the environment within the meaning of that directive, thereby necessitating an environmental assessment.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Thybaut and Others (Environment - Assessment of the effects of certain plans and programmes on the environment - Judgment) [2018] EUECJ C-160/17 (07 June 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C16017.html Cite as: EU:C:2018:401, [2019] Env LR 8, [2018] EUECJ C-160/17, ECLI:EU:C:2018:401

Court of Justice of the European Communities (including Court of First Instance Decisions)