Council mineral planning authority settling conditions for continuance of quarrying permission initially obtained under 1947 development order – Objectors contending that council not entitled to proceed without first considering whether environmental impact assessment should be made under EEC Directive – Council claiming Directive inapplicable to determination under section 22 of the Planning and Compensation Act 1991 – Objectors successful before Court of Appeal – Further appeal by council dismissed
Located in a conservation area on the fringe of the Yorkshire Dales, some 322ha of land, including Wensley Quarries near Preston-under-Scar, was the subject of a 1947 Interim Development Order (IDO), which permitted quarrying operations without conditions and for an indefinite period. From the time that section 22 of the Planning and Compensation Act 1991 came into force, landowners wishing to preserve the benefit of an IDO became obliged, inter alia, to apply to the relevant mineral planning authority for the settlement of suitable conditions, which the authority could include at their discretion. On 6 June 1995 the appellant council, acting under section 22, approved conditions for the continuance of the permission granted by the 1947 IDO. The respondent local residents sought to quash the council’s determination on the ground that the council should not have proceeded to determine conditions without considering, as a preliminary matter, whether or not to undertake an environment impact assessment, such prior consideration being required by the European Union Council Directive of 27 June 1985 (85/337/EEC). The council contended, inter alia, that their determination was not a “development consent” within the meaning of the Directive, as the relevant permission was, and would remain, a permission derived from the 1947 IDO. The council succeeded at first instance, but that decision was reversed by the Court of Appeal. The council appealed to the House of Lords.
Held: The appeal was dismissed.
1. As defined in the Directive, a “development consent” was a “decision of the competent authority or authorities which entitles the developer to proceed with the project”. The council had correctly submitted that the imposition of conditions under section 22 of the 1991 Act was not a decision that the developer should be entitled to proceed, and that, consequently, the determination did not decide whether the developer might proceed but only the manner in which he might do so. Nevertheless, given that the permission would have become void unless the council had been given the opportunity to impose such conditions, the determination was a necessary condition for the developer’s entitlement to proceed at all.
2. The very presence of that condition was sufficient to bring the determination within the European concept of development consent. The wording of the Directive indicated that it had wide scope and broad purpose: see Case C-72/95 Aannamaersbedrijf PK Kraaijveld v Gedeputeerde Staten Van Zuid-Holland [1997] ENV LR 265. Even though the 1991 Act operated by way of a power to impose conditions rather than complete prohibition, the procedure was nevertheless a new and freestanding examination of the likely effects of old mining permissions, which had been granted without, to modern ways of thinking, any serious consideration of the environmental effects. It could not therefore be said that the environmental effect of the quarry had been definitely determined in 1947.
3. It was otherwise where a decision involved merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, had already been given: see, for example, R v Secretary of State for the Environment, ex parte Greenpeace Ltd [1994] 4 All ER 352.
Editor’s Note
Because the determination was not a grant of a planning permission as such, the court was not concerned with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which otherwise seek to implement the Directive.
Timothy Straker QC and Philip Kolvin (instructed by the solictor to North Yorkshire County Council) appeared for the appellants; Richard Gordon QC and William Birtles (instructed by Richard Buxton, of Cambridge) appeared for the respondents.
Alan Cooklin, barrister
