Council failing to determine developer’s application within time – Deemed determination of permission subject to developer’s conditions – No environmental statement – Applicant resident seeking to quash determination – Effect of Council Directive 85/337/EEC on deemed consent provisions of Planning and Compensation Act 1991 – Application dismissed
The applicant lived adjacent to Broadwood Quarry, Frosterley. Sherburn Stone Company Ltd (Sherburn) had a dormant planning permission for mineral extraction at the quarry. Durham County Council (the council) was the mineral planning authority for that area. In February 1999 Sherburn applied for registration of the permission and for determination of the conditions to which it would be subject. Sherburn submitted a scheme of conditions, and the council informed Sherburn that an environmental statement would be required. Sherburn took the view that an environmental statement would not be required and did not submit one. The council decided that they could not enforce the environmental statement provision. In May 1999 Sherburn wrote to the council, stating that, as the three-month period under the Planning and Compensation Act 1991 had expired without a determination of its application, there was a deemed determination under para 2(6)(b) of the Act that the permission was to be subject to the conditions set out in Sherburn’s application.
The applicant was concerned about the proposed reactivation of the quarry, and submitted that there was a determination, albeit a “deemed” one, by the council. Applying R v North Yorkshire County Council ex parte Brown [1999] PLSCS 32; [1999] 2 WLR 452, such a determination was a “development consent” within the meaning of Council Directive 85/337/EEC and should be quashed if it should have been, but was not, accompanied by an environmental statement. The applicant submitted that: (i) he had a directly effective right under the directive; (ii) the environmental information required by the directive should be made available to him; and (iii) the council’s decision should be made only in the light of that information. It was submitted, therefore, that the council should have disregarded the unlawful statutory deeming provision and applied the remaining statutory procedures, treating Sherburn’s application as extant and requiring the submission of an environmental statement.
The Secretary of State submitted that the applicant was seeking to deploy the doctrine of direct effect in an impermissible way and place an obligation on Sherburn and/or expose Sherburn to penalties. The key issue was whether the council’s deemed determination was invalid by reason of incompatibility with the directive.
Held: The application was dismissed.
The directive was intended to apply to any decision of the competent authority which entitled the developer to proceed, whether that decision was an actual decision or a deemed one. There was, therefore, a determination, which was “development consent” within the meaning of the directive. However, in order to succeed, the applicant had to show that the council was required, as a matter of European law, to disregard the deeming provision in the 1991 Act and to apply the remaining statutory procedures as if the deeming provision was ineffective. The council would have had to rely on the directive as overriding the rights conferred on Sherburn by national law. That would have involved the council, an emanation of the state, relying on the directive as against Sherburn, an individual. Such a position was contrary to the principles laid down by the European Court concerning the direct effect of directives. An individual may rely on the direct effect of a directive as against the state, so as to have inconsistent national law disapplied; but a state that has defaulted in its implementation of the directive cannot rely on the direct effect of the directive, as against an individual, so as to disregard inconsistent national law or to have it disapplied.
If the council was unable to rely on the directive as against Sherburn, it followed that the applicant could not show that the council erred in law or acted unlawfully in failing to disregard the deeming provision in the 1991 Act. The fact that an application for judicial review was brought by an individual against a state authority could not confer on that authority rights that it would not otherwise enjoy, or impose obligations upon it to which it would not otherwise be subject. Brown was distinguished as it was concerned with an actual determination and not with the statutory deeming provision at the heart of the present case, nor did it address the specific issue of direct effect.
Robert McCracken (instructed by Richard Buxton, of Cambridge) appeared for the applicant; Reuben Taylor (instructed by the solicitor for Durham County Council appeared for the first respondents; James Findlay (instructed by Aaron & Partners) appeared for the second respondent; David Elvin and David Forsdick (instructed by the Treasuy Solicitor) appeared for the Secretary of State.
Sarah Addenbrooke, barrister
