R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions C-201/02

Old mining permission — Application for registration and determination of conditions upon which mining activity could resume — No environmental impact assessment sought — Judicial review — European law — Application of Article 2(1) of Directive 85/337/EEC — Whether individual able to invoke Article 2(1) in domestic courts The claimant lived near a dormant quarry in an environmentally sensitive area. The quarry had the benefit of an old mining permission, granted in 1947 under the Town and Country Planning (General Interim Development) Order 1946. In 1991, the owners of the quarry applied to the relevant authority for registration of the old mining permission, under the Planning and Compensation Act 1991, and for the determination of the conditions upon which mining activities would be allowed to resume. Registration was granted, and conditions were imposed. These were considered both by the authority and, following by an appeal by the quarry owners, the Secretary of State. In determining the appropriate conditions, neither the authority nor the Secretary of State examined whether it would be necessary to conduct an environmental impact assessment (EIA) pursuant to Directive 85/337/EEC (the EIA Directive). The claimant brought judicial review proceedings in which she sought the revocation of the permission on the ground that an EIA had not been conducted, as required under the EIA Directive. Article 1(2) of the directive defined “development consent” as the decision of the competent authority that entitled the developer to proceed with a project. Article 2(1) provided that, before consent was given, an EIA should be required for all projects likely to have a significant effect upon the environment by virtue of their nature, size or location. The claim was stayed, pending the referral of various questions of European law, including the question as to whether the approval of a new set of conditions for an existing permission, granted by interim development order (IDO) under section 22 of, and Schedule 2 to, the Planning and Compensation Act 1991 was a development consent for the purposes of the EIA Directive. The court ruled: 1. The quarry owners had been obliged, if they wished to resume working the quarry, to have the old mining permission registered, and to seek decisions determining new planning conditions and approving matters reserved by those conditions. Had they not done so, the permission would have ceased to have effect. Accordingly, decisions such as that determining new conditions, and the decisions approving matters reserved by those new conditions for the working of the quarry, constituted, as a whole, a new consent within the meaning of Article 2(1) of the EIA Directive, read in conjunction with Article 1(2). In the context of the application of provisions such as section 22 of, and Schedule 2 to, the 1991 Act, the decisions adopted by the competent authorities, which effectively permitted the resumption of mining operations, constituted a development consent. The competent authorities were thus required, where appropriate, to carry out an assessment of the environmental effects of the planned mining operations. Where national law provided that the consent procedure was to be carried out in several stages, with one involving a principal decision and the other involving an implementing decision that could not extend beyond the parameters set by the principal decision, the effects that the project could have upon the environment had to be identified and assessed at the time of the procedure relating to the principal decision. The assessment should be carried out in the course of the procedure relating to the implementing decision only if the environmental effects were not identifiable until the time of that procedure. 2. In circumstances such as those of the main proceedings, an individual could, where appropriate, rely upon Article 2(1) of the EIA Directive, read in conjunction with Articles 1(2) and 4(2), in order to challenge the member state’s failure to require an EIA. The principle of legal certainty prevented directives from creating obligations for individuals; they could create only rights. Accordingly, an individual could not rely upon a directive against a member state where the state’s obligation was directly linked to the performance of another obligation falling, pursuant to that directive, on a third party: Verband deutscher Daihatsu-Händler eV v Daihatsu Deutschland GmbH C-97/96 [1997] ECR I-6843 applied. However, the obligation on a member state to ensure that the competent authorities carried out an assessment of the environmental effects of working the quarry was not directly linked to the performance of any obligation that would fall, pursuant to the EIA Directive, on the quarry owners. Acceptance that an individual was entitled to invoke Article 2(1) would not amount to an inverse direct effect obliging the member state, at the request of an individual, to deprive other individuals, such as the quarry owners, of their rights. The fact that mining operations had to be halted pending the results of the EIA could not be described as an inverse direct effect. Mere adverse repercussions on the rights of third parties did not justify preventing an individual from invoking Article 2(1): Fratelli Costanzo SpA v Comune di Milano C-103/88 [1989] ECR 1839 and Unilever Italia SpA v Central Food SpA C-443/98 [2000] ECR I-7535 applied. 3. Under settled case law, member states were required to nullify the unlawful consequences of a breach of Community law: Humblet v Belgium C-6/60 [1960] ECR 559 applied. The competent authorities of a member state were obliged to take, within their sphere of competence, all the measures necessary for remedying the failure to carry out an EIA as provided for in Article 2(1). The detailed procedural rules applicable in that context were a matter for the domestic legal order of each member state, provided that they were not less favourable than those governing similar domestic situations, and they did not render it impossible in practice, or make it excessively difficult, to exercise rights conferred by the Community legal order. Accordingly, it was for the national court to determine whether it was possible, under domestic law, for a consent already granted to be revoked or suspended in order to subject the project to an EIA in accordance with Article 2(1), or, alternatively, if the individual agreed, whether he or she could claim compensation for the harm suffered by the failure to carry out the EIA. Richard Gordon QC and James Pereira (instructed by Richard Buxton, of Cambridge) appeared for the claimant; David Elvin QC and James Maurici (instructed by the solicitor to the Office of the Deputy Prime Minister) appeared for the defendant. Sally Dobson, barrister