Council Directive 85/337/EEC — Environmental impact assessment — Old mining permission — Deemed conditions — Directive not transposed — Whether deeming provisions rendered ineffective by community law
In February 1999 the second respondent, S, applied to the first respondent council, the mineral planning authority, to register an old mining permission and to determine the conditions to which the permission was to be subject. Although invited to submit an environmental impact assessment, S did not do so. In May 1999 S stated in a letter to the council that the three-month period under the Planning and Compensation Act 1991 had expired without a determination of its application and that, accordingly, the permission was deemed, under the Act, to be subject to the conditions set out in the application. Initially, the council took the view that, because of the effect of R v North Yorkshire County Council, ex parte Brown [1999] 1 WLR 452, an environmental impact statement was still required; they later decided not to require one. The appellant, a local resident, challenged that decision by an application for judicial review. The application was dismissed. The appellant appealed, contending that the court should have given effect to the United Kingdom’s obligation to implement the environmental impact assessment requirements of Council Directive 85/337/EEC
Held The appeal was allowed.
The domestic legislation manifestly failed to require an environmental impact assessment as a precondition of making the determination in relation to an old mining permission and the conditions to which it should be subject. There were means by which a directive could be given effect in domestic law otherwise than by implementing legislation. Under community law, the council and S were to treat the statutory default provision in the 1991 Act for the deemed grant of permission and determination of procedures as if the deeming provision were ineffective. The council directive could, therefore, be given direct effect by disapplying the deeming provision. The appellant was entitled to complain that the state had not set up the requisite machinery to give him the opportunity that should have been afforded to him had the directive been properly implemented.
Aannamaersbedrijf PK Kraaijeveld v Gedeputeerde Staten Van Zuid-Holland, Dutch Dykes Case C-72/95 [1996] ECR I-5403
Becker v Finanzamt Munster-Innensdadt (C8/81) [1982] ECR 53
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CIA Security International SA v Signalson SA (C194/94) [1996] All ER (EC) 557; [1996] 2 CMLR 781
Commission of the European Communities v Germany [1995] ECR I-2189
Criminal Proceedings against Arcaro (C168/95) [1997] All ER (EC) 82; [1997] 1 CMLR 179
Francovich v Italy [1993] 2 CMLR 66
Fratelli Costanzo SpA v Comune di Milano (C103/88) [1989] ECR 1839
Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] QB 401; [1986] 2 WLR 780; [1986] 2 All ER 584, ECJ
Officier van Justitië v Kolpinghuis Nijmegen BV (C-80/86) [1989] 2 CMLR 18
Pafitis v Trapeza Kentrikis Ellados AE (C441/93) [1996] 2 CMLR 551
R v Medicines Control Agency, ex parte Smith & Nephew Pharmaceuticals Ltd (C201/94) [1996] ECR I-5819
R v North Yorkshire County Council, ex parte Brown [1999] 2 WLR 452; [1999] 1 All ER 969; [1999] 1 PLR 116
R v Rochdale Metropolitan Borough Council, ex parte Brown [1997] JPL 337; [1997] Env LR 100, QB
R v Secretary of State for Employment, ex parte Seymour-Smith [1997] 1 WLR 473; [1997] 2 All ER 273
R v Somerset County Council, ex parte Morris & Perry (Gurney Slade Quarry) Ltd (2000) 79 P&CR 238
World Wildlife Fund v Autonome Provinz Bozen (Case C435/97) [2000] 1 CMLR 149
This was an appeal brought by Rodney Huddleston against a decision of Richards J, refusing his application for judicial review of a decision of the first respondents, Durham County Council, in relation to a determination of an application in respect of a dormant mining permission made by the second respondent, Sherburn Stone Co Ltd, to which the Secretary of State for the Environment, Transport and the Regions was joined as third respondent.
SEDLEY LJ: The problem before the court was felicitously summarised in Durham County Council’s July 1999 press release: “LEGAL LOOPHOLE TIES COUNCIL’S HANDS IN QUARRYING BID”. Less picturesquely, it is whether the court can do anything about a statutory planning regime that, in clear breach of a directive that the United Kingdom was required to implement, enables a company to revive a mining permission by registering it with the local mineral planning authority without providing |page:124| an environmental impact assessment. The purpose of the assessment is to enable informed public consultation to take place about conditions that need to be annexed by the mineral planning authority to the permission. Richards J, a judge with extensive knowledge both of public law and of the law of the European Community, held that the court’s hands, like the council’s, were tied. Having heard the issues reargued, and having considered his judgment with care, I have concluded not only that the court’s hands are not tied but that the court has, in the circumstances of this case, both the power and the duty to give effect to the directive.
Sherburn Stone Co Ltd (Sherburn) is the holder of a dormant planning permission to extract minerals on a large site known as Broadwood Quarry, near Frosterley, in County Durham. In the language of section 22 of the Planning and Compensation Act 1991, it is an old mining permission that, by virtue of section 22(3), is suspended because no quarrying had been done there in the two years to 1 May 1991. The full text of the section is scheduled to this judgment1. Its effect was that, to quarry the site, Sherburn needed to register the permission with the local mineral planning authority (Durham). Registration would give the permission effect, but subject to appropriate conditions. The procedure for setting conditions is set out in Schedule 2. The two provisions crucial to this appeal are that, by para 2(3), the applicant must set out its proposed conditions, and that by para 2(6):
On an application under this paragraph —
(a) the mineral planning authority must determine the conditions to which the permission is to be subject, and
(b) if, within the period of three months beginning with the service of notice of the application … the authority have not given the applicant notice of their determination, the authority shall be treated for the purposes of section 22 of this Act and this Schedule as having determined that the permission is to be subject to the conditions set out in the application.
Council Directive 85/337/EEC of 27 June 1985 concerns the prior assessment of the effects of certain public and private projects on the environment. Its material parts are scheduled to this judgment1. Article 1(2) defines a development consent as “the decision of the competent authority or authorities which entitles the developer to proceed with the project”, and goes on to make it clear that “project” includes mineral extraction operations. Quarrying is scheduled in Annex II among the operations for which an environmental impact assessment is required only if the member state considers it appropriate, as manifestly the United Kingdom does. Before consent is given for any such project, member states are required by Article 2(1) to ensure that an assessment is made of any significant environmental effects which are likely to result. Among the detailed requirements, member states are called upon to ensure that the developer provides a technical assessment with a non-technical summary |page:125| (Article 5(1) and Annex III) upon which the public are to be consulted (Article 6).
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1 Not produced here
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In the planning field, the measure adopted by way of implementation of the directive was the Town and Country Planning (Assessment of Environmental Effects) Regulations 19881, now superseded but not relevantly altered. The key provision was Regulation 4(2), which provided in relation to applications such as Sherburn’s:
The local planning authority…shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration…
environmental information meaning, in short, the developer’s impact assessment and the product of the consultation process. This provision of secondary legislation, loyal as it is to the directive, would have been rendered impotent by the statutory deeming provision in the Schedule to the 1991 Act, even assuming that by a process of convergent construction it was possible to apply the regulations to the determination of conditions for planning permission, and not simply (as is ex facie the case) to its grant.
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1 SI 1988/1199; revoked by SI 1999/293
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On 15 February 1999 Sherburn applied to register its permission. It set out conditions satisfactory to itself but, having inquired into the legal situation, tendered no environmental impact assessment. Four days before Sherburn lodged its application, however, the House of Lords had given its decision in R v North Yorkshire County Council, ex parte Brown [1999] 2 WLR 4522 to the effect that a mineral planning authority’s determination under section 22 of and Schedule 2 to the 1991 Act is a development consent falling within Directive 85/337/EEC, and therefore requires an environmental impact assessment as part of the registration process. Their lordships, however, did not need to decide the validity of the deeming provision that lies at the heart of the present appeal, and reserved the issue: see p459D. In reliance on ex parte Brown, Durham initially insisted upon an environmental impact assessment, threatening Sherburn with enforcement action if it began quarrying. But, in July 1999, on counsel’s advice, they moderated their stance and accepted that they could not, of their own motion, treat the directive as effective or, therefore, the deeming provision as ineffective. Mr Huddleston, a retired quarry engineer who lives nearby, promptly stepped into the breach by seeking and obtaining leave to bring these judicial review proceedings.
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2 [1999] 1 PLR 116
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On learning that Durham proposed to make common cause with the applicant, the Secretary of State for the Environment, Transport and the Regions had himself added as a party. Interim relief has stopped Sherburn doing more than stripping off topsoil, and the hearings have been expedited. The case comes before us, as it came before Richards J, with counsel for the Secretary of State, Mr David Elvin, taking the lead opposition role for reasons that, even when they had been explained, were |page:126| not entirely obvious. One might have thought that central government, having on its own admission failed to transpose the directive properly into law and being engaged in trying to decide how to correct its lapse, would at most be a bystander in the argument between Mr Huddleston and Sherburn, very much as Durham has been. Instead, Mr Elvin has shouldered the main burden of the developers’ case, enabling Mr James Findlay, for Sherburn, for the most part to adopt Mr Elvin’s argument — which, let me say at once, has, as always, been helpful and objective.
The competing positions can be shortly stated. Mr Huddleston and Durham contend that while the latter’s hands are tied by the legislation, the former’s are not. It is open to Mr Huddleston to insist that the state, of which Durham is a part, should not be able to rely upon its own admitted wrong in failing properly to implement the directive, and that the court, either by reading the deeming provision down or by disapplying it, should give effect to the United Kingdom’s Community obligation. Mr Elvin and Mr Findlay, although each stressing a different limb of the argument, contend that this is the forbidden act of giving direct effect to an unimplemented directive as between individuals — here Mr Huddleston and Sherburn. In particular, to give it direct effect is to expose Sherburn both to an uncovenanted obligation and to criminal sanctions, in clear breach of the principles of Community law.
The first step in the process is no longer contentious. Once it is established, as the decision of the House of Lords in ex parte Brown has now established, that a section 22 determination is a development consent for the purposes of the directive, it follows that the United Kingdom must require an environmental impact assessment as a precondition of making the determination. This the legislation not only manifestly fails to do, in so far as it deems a determination to have been made in the circumstances described in para 2(6)(b) of Schedule 2, but it positively encourages a developer to withhold a statement in the knowledge that the resulting deadlock will shortly be resolved by operation of law in the developer’s favour. Recognising this, government is now at an advanced stage of consultation on the best means of bringing national law into conformity with the directive. In the interim, it has strongly advised voluntary compliance.
The second question is whether, notwithstanding the present situation, remedial action at law has to take the form of new primary legislation or, failing that, of proceedings brought by the Commission against the United Kingdom. The answer is to be found in the broad proposition that there are means by which a directive can be given effect in domestic law otherwise than by implementing legislation, but that these stop short both of rewriting the statute book and of giving direct effect to the directive as between individuals. For the Secretary of State and the developer, it has been urged that any attempt at convergent construction would fall into the first of these vices, and that the deeming provision cannot be disapplied without falling into the second.
For reasons that in the end were common ground, and so do not need to be rehearsed, I accept that to construe the statutory provisions so as to |page:127| converge with the directive by “writing in” further words would set off a chain reaction likely to disrupt the whole planning regime for mineral extraction. This makes it unnecessary to decide the potentially important question of whether the doctrinal objection to horizontal direct effect is logically relevant at all to the process of convergent construction. Instead, one moves directly to the question of whether the possibility of giving the directive direct effect by disapplying the deeming provision is precluded by the consequence that to do so will impermissibly alter the legal relations between two persons, Mr Huddleston and Sherburn, neither of whom is part of the state. In other words, is this the forbidden territory of horizontal direct effect?
Mr Elvin has invited us to enter this terrain with care. He cites, less as a guide than as a warning, a passage in Craig and de Burca’s EU Law, 2nd ed 1998 at p210, which says of the recent decisions of the European Court of Justice:
On the one hand they suggest a distinction must be drawn between an obligation contained in a directive, and a lesser indirect adverse impact of the directive on an individual[;] and on the other they suggest that a distinction must be drawn between the enforcement of private-law as opposed to public-law obligations. However, these niceties and subtleties are not to be found in the reasoning of the Court in any of the cases, and although some of the Advocates General attempt bravely to explain them, it is difficult to avoid the conclusion that the saga of horizontal direct effect is not yet dead, and that there is further confusion ahead before anything like a clear position on the permissible legal effects of a non-implemented directive will be reached.
For reasons to which I now turn, I believe this to be an excessively pessimistic analysis and forecast, possibly because it is based upon a tendency to make abstract and general what is often pragmatic and case-specific. But this is not to say that there are no principles. The two polar principles can be simply stated:
A. Because no state may lawfully take advantage of its own failure to implement a directive, state bodies are to be treated in domestic law as if an unimplemented directive had been implemented.
B. Because Community directives are addressed to states, they cannot by themselves alter the legal relations between individuals.
Between these poles (in commentators’ shorthand, permitted vertical effect and impermissible horizontal effect) lie a variety of problematic situations. One is a situation in which treating the state as having implemented a directive operates directly to the benefit of one individual and to the detriment of another. This is often unavoidable if principle A is to be respected; but a point must come at which it is impermissible if principle B is to be respected. It is the group of decided cases that draw lines across this region that Craig and de Burca criticise on the ground that they “blur the clarity of the rule against horizontal direct effect” (ibid). |page:128|
In R v Secretary of State for Employment, ex parte Seymour-Smith [1997] 1 WLR 473, the House of Lords, applying the principles of Community law, declined to give direct effect to the Equal Treatment Directive so as to alter the qualifying period for an unfair dismissal claim. Lord Hoffmann said at p477D:
it is in my view acte claire that a Directive, as such, has no effect upon the private rights of parties such as the employees in this case and their employers. The position is otherwise when the question concerns the rights and duties of the citizen as against the state or one of its emanations.
He rejected at p478D, as a play upon words, the argument that the relief sought by the employees lay solely against the state:
The basis of the enforceability of Directives…is a species of estoppel: the member state “may not plead, as against individuals, its own failure to perform the obligations which the Directive entails”…[Marshall v Southampton etc Health Authority [1986] QB 401, para. 47]… The effect would be to give the Directive, by an easy two-stage process, the very effect which the jurisprudence of the Court of Justice says it cannot have, namely to impose obligations upon an individual. Furthermore, those obligations would be imposed arbitrarily and retrospectively, depending upon whether and when some interested person brought proceedings in public law to assert his “right” against the state to have incompatible domestic law set aside. This seems to me inconsistent with the principle of legal certainty which is one of the fundamental doctrines of Community law.
…
The effect of the decisions in Marshall [1986] QB 410 and Faccini Dori [1994] ECR I-3325 is that, except in proceedings which bring into question the legal relations between the individual and the state or its emanations, Directives do not give rise to rights or restrictions which without further enactment are required to be given legal effect.
So far, with respect, I see no blurring. If further illumination were needed, it can be found in the classic exposition of principle set out in the opinion of Advocate General Sir Gordon Slynn, as he then was, in Marshall (see above) at pp411-414. The present case on this analysis is not one in which treating an environmental impact statement as a uniform prerequisite of a determination touches any legal relationship between Sherburn and Mr Huddleston. They have no legal relationship akin, for example, to that of employer and employee or even neighbour and neighbour. They confront one another in these proceedings only because each has a distinct interest recognised by law in Durham’s function as a mineral planning authority; the one as a developer with an extant mining permission; the other as a member of the public concerned that the environment should be suitably protected when mining starts. In Lord Hoffmann’s words, the case on both sides “concerns the rights and duties of the citizen as against the state” it “brings into question the legal relations between the individual and the state”. Given the purpose and character of the Environment Directive, in contrast to those |page:129| of the Equal Treatment Directive, this is unsurprising.
If, however, to give effect to rights and duties against the state is also to impose obligations upon an individual, Lord Hoffmann’s test would appear, at lowest, to cut both ways and, at highest, (as Mr Findlay has submitted) to support Sherburn’s case. In my view, it does neither. This is not only because it is plain that the categories described by Lord Hoffmann are intended to be mutually exclusive, it is because there is a fundamental difference between imposing legal obligations on an individual that limit his freedom of action vis-à-vis other individuals, and placing conditions upon that individual’s entitlement to secure a benefit from the state. The latter, which is what Sherburn is facing, seems to me to come into the category of permitted transposition from Community to domestic law as surely as the former does not.
For the most part, the Community cases that counsel have cited illustrate this distinction. Most recently, in World Wildlife Fund v Autonome Provinz Bozen1 the court held that an individual could call the state to account for the non-implementation of the requirements of the present directive for environmental impact assessments, in a case in which a developer was directly and adversely affected by the intervention. The analogy with the present case is close, both in fact and (more importantly) in principle. I find Mr Elvin’s submission that the present point was not addressed in it a surprising one for the Secretary of State to make, since both the United Kingdom and the adversely affected developer were parties to the proceedings. The outcome simply could not have been reached by the court if it had been perceived as involving horizontal direct effect. The more convincing explanation is the obvious one; everyone involved recognised that if the case was otherwise well founded, no question of horizontal direct effect arose. As the court had already explained in CIA Security International SA v Signalson SA [1996] 2 CMLR 7812, at para 42:
It is settled law that, wherever provisions of a directive appear to be, from the point of view of their content, unconditional and sufficiently precise, they may be relied on against any national provision which is not in accordance with the directive…
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1 Case C-435/97; [2000] 1 CMLR 149
2 Case C-194/94
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In support, the court cited Becker v Finanzamt Munster-Innensdadt [1982] ECR 533 and Francovich v Italy [1993] 2 CMLR 664.
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3 Case C-8/81
4 Case C-6/90
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Mr McCracken, who has presented Mr Huddleston’s case with skill and learning, is able to deploy a perhaps even sharper illustration of the degree to which unimplemented directives may penetrate domestic law without falling into the horizontality trap. In Fratelli Costanzo SpA v Comune di Milano [1989] ECR 18395 the court intervened to ensure |page:130| compliance with the Public Works Directive (71/305/EEC) by acceding to the claim of an abnormally low bidder to be allowed to explain its tender, even though this meant displacing the successful bidder. Citing its own jurisprudence, the court held at p187O-187P that the material provision:
[is] unconditional and sufficiently precise, may be relied upon by an individual against the State…An individual may therefore plead that provision before the national courts and,…all organs of the administration, including decentralized authorities such as municipalities, are obliged to apply it.
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5 Case C 103/88
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Again, the fact that a measure has to be applied to somebody — there the successful and unsuccessful bidders, here and in Bozen the developer — does not mean that it is being applied, whether in one stage or in two, as between individuals. In such cases, in contrast to Seymour-Smith, the issue throughout remains one of lawful government.
Once again, and tellingly, in Fratelli Costanzo horizontal direct effect was not argued. It was, however, argued by Advocate General Léger on the reference in R v Medicines Control Agency, ex parte Smith & Nephew Pharmaceuticals Ltd [1996] ECR I-58191, a case involving commercial rivalry, but the court concluded:
The holder of an original marketing authorization issued under the procedure referred to in Directive 65/55 may rely on the provisions of that directive…in proceedings before a national court in order to challenge the validity of an authorization issued by the competent national authority on the basis of…[the directive] to one of its competitors for a proprietary medicinal product bearing the same name.
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1 Case C-201/94
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Both these cases, like the case of Pafitis v Trapeza Kentrikis Ellados AE [1996] 2 CMLR 5512, are explained by Mr Elvin as involving simply the incidental loss of a benefit. This may be right, but, if so, it illustrates the important proposition, which can perhaps be added to my two initial ones, that enforcement of a directive by an individual against the state is not rendered inadmissible solely by its consequential effect on other individuals.
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2 Case C-441/93
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Where the apparent difficulty and arguable blurring come is in the case of Criminal Proceedings against Arcaro [1997] 1 CMLR 1793. In Arcaro, the issue was whether an untransposed directive could be enforced against the state so as to impose or increase individual criminal liability. Italy had failed to implement the requirement of an environmental directive that there be penalties for unauthorised cadmium discharges. Sr Arcaro had been prosecuted for discharging cadmium in quantities which would have been unauthorised only if the directive had been duly transposed. One sees readily that it is one thing to treat the state as doing what it is obliged |page:131| to do, even if it affects the rights or expectations of others, and another to treat it as having criminalised acts or omissions which it has not, in fact, criminalised. The problem is that this is not quite how the court put it. Its judgment in para 42 echoes both para 30 of Advocate General Elmer’s opinion, which poses the issue in terms of imposed obligations, and paras 41 to 43, which apply the principle that there must be no crime without law.
However, that obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its own national law is a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions (see Kolpinghuis Nijmegen).
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3 Case C-168/95
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The court’s decision in Officier van Justitië v Kolpinghuis Nijmegen BV [1989] 2 CMLR 181 had reiterated separately the two principles referred to in Arcaro: first, that “a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person before a national court” (I have italicised the words which stress the directness of the forbidden effect); and, second, that the national court’s obligation to interpret domestic law in conformity with a relevant directive:
is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity. Thus…a directive cannot, of itself and independently of a national law adopted by a member-state for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.
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1 Case C-80/86
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Subject to Mr Findlay’s argument that a criminal liability is being created here, Mr Huddleston’s application can be seen to offend against neither of the principles set out in Kolpinghuis Nijmegen and Arcaro. To read “the imposition on an individual of an obligation laid down by a directive which has not been transposed” as including the application to an individual of conditions laid down by such a directive for the grant of a necessary permission by the state, would be to nullify the court’s decisions and reasoning in Paftitis, Smith & Nephew, Costanzo and Bozen. By contrast, to understand the two as fundamentally different things is to make sense of all the cases to which I have referred, including Arcaro and Kolpinghuis Nijmegen, and to do so moreover on a footing that both respects and gives substance to the guiding principles that I have sought to identify earlier in this judgment. One may now add to them that treating the state as having done what the directive calls upon it to do, stops short not only of |page:132| modifying the legal relations between private persons but also of criminalising what they have done.
I reject the contention that the present application, if successful, would impose a criminal liability on Sherburn. It is only if Sherburn were to quarry the site without lawful permission that an offence might be committed, and it is what amounts to lawful permission that is in issue here. The situation is thus significantly different from that in Arcaro. If the objection were sound, it would almost certainly have provided an answer in cases such as Bozen. I accept that more problematic considerations would have arisen if Sherburn had by now gone ahead with quarrying solely on its own proposed conditions and been prosecuted in reliance on the directive; but that is not this case. Nor is it the case, as Mr Findlay has suggested it is, that to demand an environmental impact assessment is to deprive Sherburn of a right to proceed after three months without one. Even in its present muddled state, the schedule to the 1991 Act demands a prior assessment; it simply and bizarrely rewards a developer for failing to provide one.
While counsel have not found it useful to analyse the relevant distinction in terms of domestic public and private law (and while I would accept that the present boundaries between the two are unsatisfactory and impermanent), the essential difference between them in contemporary English legal theory seems to me to shine a helpful light on the distinction made in the law of the European Community. Public law is concerned essentially with wrongs, in the sense that the state’s powers are circumscribed by laws that a person with a sufficient interest may seek to enforce so long as anybody potentially affected also has a say; while private law, concerned essentially with rights, governs the relations of persons with each other. Accepting that a company like Sherburn Stone is a legal person of a different kind from Durham County Council (notwithstanding that both are statutory corporations) and of an equivalent kind to a private individual (notwithstanding that an individual does not need the state’s permission to exist or to act), what is at issue in the present case is on what terms the local state can lawfully authorise a particular activity for which the company requires the state’s permission. As the manner of bringing the claim underlines, this is a pure question of public law; that is to say, a question of the limits of the state’s powers in a field where authority has been delegated by parliament to what is now the European Union. The applicant for judicial review needs to establish no private law right or interest, for example as a potential claimant against Sherburn Stone in nuisance. Mr Huddleston’s entitlement to seek judicial review depends not upon his physical propinquity to the site, although that is, no doubt, a stimulus, but upon his interest in the legal protection of the environment. While this may not be the acid test of all horizontal direct effect issues, in my view it casts useful light upon a case such as this one, underscoring the same primary distinction as can be seen in the case law of the European Court of Justice. It also distinguishes the decision of Maurice Kay J in R v Somerset County Council, ex parte Morris & Perry (Gurney Slade Quarry) Ltd |page:133| unreported 29 July 19991, which concerned the attempt of a mineral planning authority to have themselves estopped; a trap into which Durham, acting on sound advice, have not fallen. The undisputed sufficiency of Mr Huddleston’s interest in the state’s failure to transpose the directive gives him the necessary standing to trigger the state’s obligation; and if a formal right is necessary, his right to move the court for permission and then, given his arguable case, to seek an appropriate order is, in my view, no weaker than a legal right or interest in land. These reflections are, however, not necessary to this decision.
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1 Reported at (2000) 79 P&CR 238
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In the light of case law that I have mentioned, it is this critical passage in Richards J’s judgment that, in my respectful view, is flawed:
in order to disregard the statutory deeming provision, Durham would have had to rely on the directive as overriding the rights conferred on Sherburn by national law. That would have involved Durham, an emanation of the state, relying on the directive as against Sherburn, an individual. In my judgment that would be contrary to the principles laid down by the European Court of Justice concerning the direct effect of directives. An individual may rely on the direct effect of a directive against the state so as to have inconsistent national law disapplied; but the state which 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 have it disapplied. If Durham was unable to rely on the directive against Sherburn, then it seems to me to follow that the applicant cannot show that Durham erred in law or otherwise acted unlawfully in failing to disregard the deeming provision or to apply the remaining statutory procedures as if the deeming provision was ineffective. The fact that an application for judicial review is brought by an individual against a state authority cannot confer on that authority rights that it would not otherwise enjoy or impose on it obligations to which it would not otherwise be subject.
The non-sequitur lies in the sentence I have italicised. As the ECJ cases show, the failure of the state to transpose a directive inevitably renders the state itself impotent to implement it; but for an individual with a recognised interest in proper implementation, it is precisely the state’s failure that disables it from taking refuge in its own wrongdoing; and it is this that, in turn, entitles the citizen, as Advocate General Sir Gordon Slynn, as he then was, explained in Marshall, to assert rights conferred by the directive either as a sword or as a shield against the state, though not directly against another individual. So what followed from Durham’s undoubted inability to treat Sherburn as if the directive had been implemented was not that Mr Huddleston was rendered equally powerless, but, on the contrary, that he was entitled to insist that the state should act, as Durham, of their own motion, could not act, in conformity with the directive. In doing so, he was neither having Sherburn Stone criminalised nor securing some change in his own relationship with it; he was seeking, in the commentators’ jargon, to give the directive a vertical effect that would clothe Durham with the powers they ought to have had. |page:134|
This would, of course, subject Sherburn Stone to more onerous conditions for the grant of permission (though by their counsel they have disavowed any desire to go on, regardless of the effect on the environment, and although they have in fact now produced an environmental impact assessment); but to do this is not, in my judgment, to impose an obligation in the objectionable sense identified in the court’s jurisprudence — that is to say, to interpose a new obligation in the relations between individuals or retrospectively to criminalise the activity of one of them. It is to prevent the state, when asked by a citizen to give effect to the unambiguous requirements of a directive, from taking refuge in its own neglect to transpose them into national law.
Richards J considered that of the cases relied on by Mr McCracken, not even Fratelli Costanzo went “far enough to get Mr McCracken home”. On the contrary, it seems to me that the jurisprudence of the court reveals a coherent body of principle that vindicates Mr McCracken’s position. The analysis of the law made by the judge in the passage I have quoted would, if it were right, make the decisions in Pafitis, Smith & Nephew, Costanzo, Signalson and Bozen unintelligible.
In my judgment, therefore, this application for judicial review succeeds to the extent that both Durham and Sherburn must treat the statutory default provision for the deemed grant of permission as ineffective. The best course will be to hear the parties on the appropriate form of relief; but my present view, given the scope of representation before us, is that it will be sensible to grant declaratory relief in general terms.
BROOKE LJ: In R v North Yorkshire County Council ex parte Brown [1999] 2 WLR 452, Lord Hoffmann described the nature of the issues that confront us in this case. Old mining permissions exist in many parts of the country. They were granted under interim development orders made between July 1943 and July 1948, and were continued in force by section 77 of the Town and Country Planning Act 1947 and subsequent legislation. Because they had originally been granted before 1947, they did not have to be recorded in the registers of planning applications introduced in that year. They were also often indefinite in duration and subject to no conditions at all for the protection of the local environment, such as limits on hours of working, noise, vibrations, dust emissions and so on. One mischief to which these two features of the old mining permissions sometimes gave rise was that mining or quarrying operations might suddenly start or be resumed in an area without any notice at all. This would come as an unpleasant surprise to people who had bought property there many years after the relevant permission was originally granted.
When this country set out to implement Council Directive 85/337/EEC (the 1985 Directive), it was understandable that it did not have in mind the modern statutory arrangements for attaching conditions to old mining permissions because these had not been introduced when the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (the 1988 Regulations) came into force. By Regulation 4(2) of the 1988 Regulations, planning permission was not to be granted pursuant to an |page:135| application to which the regulations applied, unless the relevant authority had first taken what is described as “the environmental information” into consideration and had stated in their decision that they had done so. The regulations applied to what were called Schedule 1 or Schedule 2 applications for planning permission, expressions that are explained in Regulation 1.
The present problem has arisen because it does not appear to have been clearly appreciated until the Court of Appeal’s decision in ex parte Brown in January 1997, that there was a serious risk that the attachment of conditions to an old mining permission through the statutory scheme introduced by section 22 of and Schedule 2 to the Planning and Compensation Act 1991 (the 1991 Act) might be interpreted as the grant of a development consent within the meaning of the 1985 Directive. By this time, the problem had been compounded by the enactment of the more complex statutory scheme for the review of old mineral planning permissions and for the periodic review of all mineral planning permissions set out in section 96 of and Schedules 13 and 14 to the Environment Act 1995.
In ex parte Brown, Lord Hoffmann explained at p457 the difference between dormant and active old mining permissions. Dormant permissions are those in relation to which no development was carried on, to any substantial extent, on the land to which the permission related during the period of two years before 1 May 1991. Active permissions, as the name implies, were those by virtue of which extraction had been going on during that period.
The difference is important because, as Lord Hoffmann pointed out, in the case of a dormant permission, section 22(3) of the 1991 Act has the effect that no extraction could take place until the conditions mentioned in para 2(1)(a) of Schedule 2 to that Act had been finally determined. In the case of an active permission, the owner could continue to operate as before, subject to having to comply with the conditions when they were determined, or to cease operations if the permission lapsed on account of his failure to apply for their determination.
This case is concerned only with dormant permissions. Although Mr Elvin addressed us in relation to matters connected with active permissions, this issue simply did not arise on the facts with which we were concerned.
It was more or less common ground before us that, although, in ex parte Brown, Lord Hoffmann at p459D left open the effect of the 1985 Directive on the deeming provision found in para 2(6)(b) of Schedule 2, a deemed permission must also be treated as a development consent within the meaning of the directive. Reliance was lightly placed by Mr McCracken on a decision of Ognall J in R v Rochdale Metropolitan Borough Council, ex parte Brown [1997] Env LR 100, but I do not consider that that decision should be followed. It was also common ground that the directive had direct effect, but that Durham County Council, as the local mineral planning authority and an emanation of the state, could not rely, as against Sherburn, on the state’s failure to implement the directive in an adequate |page:136| manner. For the direct effect of the 1985 Directive, see Commission of the European Communities v Germany [1995] ECR I-2189 and the Dutch Dykes case [1996] ECR I-54031. For the inability of an emanation of the state to rely on a breach of a treaty responsibility by the state, see Fratelli Constanzo [1989] ECR 1839 at p1871.
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1 Case C-72/95
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This case is concerned with the rights of Mr Huddleston. He has lived for about 18 years in a house close to Broadwood Quarry, Frosterley, which Sherburn wish to develop. Although the area is full of industrial workings, this is Mr Huddleston’s home, and he claims that he had a right to the valuable benefits accorded to him by the 1985 directive, which were denied to him when Durham were deemed to have granted “development consent” to Sherburn without first according him his right to take an informed part in the consultation process.
The preamble to the directive shows that it was concerned to introduce general principles for the assessment of environmental effects, with a view to supplementing and co-ordinating development consent procedures governing public and private projects likely to have a major effect on the environment. To that end, development consent for such projects was not to be granted until a prior assessment of the likely environmental effect of the project had been carried out. This assessment had to be conducted on the basis of the appropriate information supplied by the developer, which might be supplemented by the authorities and by people who might be concerned by the project in question.
Those, then, were the purposes of the directive. They were to be achieved by placing an obligation on Member States to adopt all measures necessary to ensure, among other things, that before consent was given to a project of a class listed in Annex II to the directive (whose list of extractive industry projects included Sherburn’s projected quarrying project at Broadwood), the project was to be subjected to an environmental impact assessment carried out in accordance with Articles 5 to 10 of the directive.
Much was made during the course of argument by the respondents of the fact that Article 5 of the directive speaks of the information that the developer is bound to provide at the start of the assessment process, as if this was a directive imposing obligations on one private individual (Sherburn) that another private individual (Mr Huddleston) was not entitled to enforce directly in the absence of an implementing measure. This, in my judgment, is not the point; the directive imposed the obligation on the state to set up the machinery described in Articles 5 to 9, and the state failed to do so. By reason of the state’s failure, Mr Huddleston was deprived, as a member of the public concerned, of the valuable benefit that should have been conferred on him by Article 6(2). That provision had the effect of requiring the state to make available to the public any information gathered pursuant to Article 5, so that the public concerned (including |page:137| Mr Huddleston) might have had the opportunity to express a properly informed opinion to Durham before consent was given or withheld.
We have been shown the non-technical summary of an environmental statement that was prepared for Sherburn several months after permission was deemed to have been granted subject to the conditions proffered by Sherburn. It is sufficient to say that this summary contains information that would have enabled Mr Huddleston, whose amenities (both in his home and in the environment close to his home) would be detrimentally affected by the proposed quarrying, to have taken a much more informed part in the consultation process, as was his right if the directive had been effectively implemented.
It appears to me that, in these circumstances, Mr Huddleston is in a position similar to those of the complainants in the three cases mentioned by Sedley LJ in paras 16 to 18 of his judgment. In Bozen, two people living near the airport in question and two environmental associations complained that the state had failed to subject a major construction project to an environmental assessment contrary to its obligations under the 1985 directive. In Fratelli Costanzo an unsuccessful tenderer complained that the state had failed to comply with its obligations under the Public Works Directive. In the Medicines Control Agency case, a commercial rival complained that it had been disadvantaged because the state had not complied with its obligations under Articles 3 and 4 of Directive 65/65. In each case, the European Court of Justice made findings in favour of the complainants even though the effect of its findings was to deprive private individuals of the opportunities or benefits they had gained as a consequence of the relevant directive not having been implemented by the state. I can see nothing in the jurisprudence of the European Court of Justice concerning horizontal direct effect to deflect us from giving a similar favourable answer to Mr Huddleston when he complains about the valuable opportunity of which he has been deprived by the state’s failure to implement the 1985 directive properly. I agree with what Sedley LJ says in paras 19 to 22 of his judgment about the effect of the Arcaro case and about the arguments Mr Findlay based on it.
It is for these reasons that I would reject Mr Findlay’s submission that the court would be straying into forbidden territory if it imposed a requirement at the suit of Mr Huddleston on Sherburn, another private individual, to produce an environmental impact assessment to an emanation of the state. Mr Huddleston is entitled, in my judgment, to complain that the state has not set up the requisite machinery to give him the opportunity which should have been afforded to him if the directive had been properly implemented. The mere fact that the first stage in that machinery should have involved the provision of information by the developer, and that others should have provided information at a later stage, is neither here not there.
I have added this short judgment of my own in deference to the fact that we are differing from the opinion expressed by a judge who has great experience in the law of the European Union. In para 39 of his judgment, |page:138| the judge shows that he was influenced by an argument to the effect that Mr Huddleston had to show that Durham were required, as a matter of European law, to disregard the deeming provision contained in the 1991 Act and to apply the remaining statutory procedures as if the deeming provision were ineffective. In fact, so this argument runs, so long as the deeming provision had legal effect, there was nothing left for Durham to do, and, in order to disregard the statutory deeming provision, Durham would have had to rely impermissibly on the directive as overriding the rights conferred on Sherburn by national law.
This analysis seems to be unnecessarily complex. In my judgment, Mr Huddleston is entitled to say to the court: “I, an individual citizen, should have had a valuable opportunity to take part in an informed consultation in relation to an extraction project which will detrimentally affect my home and the environment in which I live. Because the state has failed to comply with its obligations under the directive, I am entitled to ask the court to give direct effect to the directive. It is a matter of indifference to me that it was a different emanation of the state that created my dilemma when it enacted the provisions as to deemed consent (without a prior environmental impact assessment) for conditions relating to dormant old mining permissions that are contained in para 2(6)(b) of Schedule 2 to the 1991 Act. The state has failed to afford me my rights, and I am entitled to ask for an order which will give the 1985 Directive direct effect.”
For these reasons, I, too, would allow this appeal.
STUART SMITH LJ: I agree.
Appeal allowed.
