My Lords, I support the amendments and support in detail all that has been said by noble Lords, including the noble and learned Lord, Lord Thomas. I want to ask a rather fundamental question. The environmental review can be taken on only where the OEP considers that, on the balance of probability,
“the authority has failed to comply with environmental law, and … it considers that the failure”
is “serious.” That is the start: a failure
“to comply with environmental law.”
Subsection (6) states:
“If the court finds that the authority has failed to comply with environmental law, it must make a statement to that effect (a ‘statement of non-compliance’).”
That is to say that the court has held that the authority in question
“has failed to comply with environmental law”.
It goes on to state:
“A statement of non-compliance does not affect the validity of the conduct in respect of which it is given.”
What does that mean? That means that the conduct in question cannot be a breach of the law. It is a failure of environmental law, yet it is not a breach of the law. Is that another way of saying that environmental law is not a law at all, and that planning law must prevail? Is that really what this is saying, or can my noble friend explain to me how you can have a law which has been breached yet the conduct is not regarded as improper?
It is a simple question that supports all these amendments, if answered properly. There is an underlying feeling that environmental law is to be a grade below some other laws so that, although you fail to comply with it, you can still be all right. That does not accord with our understanding of law—certainly not mine
for a considerable period. I do not see how it can work that you can have a piece of legislation that describes something as law—environmental law—yet it is not law that, where you breach it, renders your conduct wrong.