Interim development orders – Order made in 1947 without conditions – Council subsequently approving conditions under Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 – Effect of EU directive – Whether environmental assessment required before conditions determined – Whether developers’ permission to proceed deriving from original IDO or from determination of conditions under Planning and Compensation Act 1991, Schedule 2 – Judge finding consent and entitlement to proceed deriving from IDO – Appeal allowed
Land near Preston-under-Scar, known as Wensley Quarries, was subject to an Interim Development Order (IDO) made in 1947 without conditions. IDOs were mining permissions originally granted after July 21 1943 and before July 1 1948, before the Town and Country Planning Act 1947 took effect. On September 30 1993 the Secretary of State for the Environment, following an inspector’s inquiry, registered a permission under section 22 of the Planning and Compensation Act 1991 in respect of an area of about 320 ha. On June 6 1995 North Yorkshire County Council, approved conditions for the development of that portion of the Wensley Quarries IDO in the ownership of H. The applicants, B and C, who were local residents, sought to quash the determination of conditions. The issue was whether an environmental assessment, within the meaning of 85/337/EEC, an EU directive on the assessment of the effects of certain public and private projects on the environment, was required before conditions were determined. The council contended that the section 22 procedure was not one which entitled the developer to proceed, but one which registered the pre-existing entitlement of the developer to proceed, the entitlement emanating not from the registration and imposition of conditions, but from the IDO. The judge found that it was the IDO from which the consent and entitlement to quarry H’s land was obtained and refused the application. B and C appealed contending that the judge had erred in holding that, as matter of English law, an environmental assessment was not required where IDOs were reviewed under the provisions of the 1991 Act.
Held: The appeal was allowed.
1. It was the determination of conditions under Schedule 2 to the 1991 Act which, in the context of the instant case, was the decision entitling the developer to proceed with the project in the terms of the directive. Under the statutory scheme, which required registration and an application to determine the conditions to which the permission was to be subject, a consent was required which was the development consent within the meaning of article 1 of the directive. Therefore, an environmental impact assessment was required before conditions were determined and the determination of conditions would be quashed. The last of the decisions giving consent was not necessarily the relevant decision for the purpose of articles 1 and 2 of the directive.
2. The statutory scheme in the 1991 Act was intended to apply to, and only to, IDOs, referred to as “old mining permissions”, in order to bring them within the modern planning system. The fact that old mining permissions could be unconditional demonstrated the comprehensive exercise necessary under the 1991 procedures.
Richard Gordon QC and William Birtles (instructed by Richard Buxton, of Cambridge) appeared for the appellants; Timothy Straker QC and Philip Kolvin (instructed by the solicitor to North Yorkshire County Council) appeared for the respondents.
