Environmental assessment — ‘Old mining permission’ — Registration of old mining permission — Determination of conditions — Whether environmental statement required in connection with determination of conditions — Whether Council Directive 85/337/EEC applies to the determination of conditions under Schedule 2 to the Planning and Compensation Act 1991
In
September 1993, after his inspector had held a public local inquiry, the
Secretary of State for the Environment registered an interim development order,
made in 1947, for mining operations at the subject quarry, pursuant to section
22 of and Schedule 2 to the Planning and Compensation Act 1991. In June 1995
the mineral planning authority determined an application for approval of
conditions; they approved conditions for the operation, restoration and
aftercare of part of the quarry owned by H that were different from those
applied for. H appealed against the limitations imposed by the conditions. In
the court below Hidden J refused an application by the applicant local
residents to quash the determination of the conditions. He held that Council
Directive 85/337/EEC (which requires an environmental assessment when a
decision of a competent authority is made entitling a developer to proceed with
certain projects) had no direct effect; he also found that it was the old
mining permission from which the consent and entitlement (within the meaning of
the directive) to quarry H’s land is obtained, not the determination of the
conditions. The applicants appealed.
The
respondents conceded that the Council Directive did have direct effect. The
determination of conditions, under Schedule 2 to the 1991 Act, is the decision
that entitled the developer to proceed with the project in the terms of the
Council Directive: see p35F. Under the statutory scheme for old mining
permissions in the 1991 Act, a consent is required, which is the development
consent within the meaning of Article 1 of the directive: see p36A.
referred to in the judgment
Aannamaersbedrijf PK Kraaijveld v Gedeputeerde
Staten Van Zuid-Holland, Dutch Dykes Case C–72/95 [1997] Env LR 265
Mixnam’s Properties Ltd v Chertsey
Urban District Council [1965] AC 735; [1964] 2 WLR 1210; [1964] 2 All ER
627; (1964) 62 LGR 528, HL
Pyx Granite Co Ltd v Ministry of
Housing and Local Government [1958] 1 QB 554; [1958] 2 WLR 371; [1958] 1
All ER 625; (1958) LGR 171; 9 P&CR 204, CA
Secretary of State for Transport v Haughian
(1997) 73 P&CR 85; [1997] Env LR 59
Appeal
against the decision of Hidden J
This
was an appeal by Marilyn Brown and Leslie Cartwright from a decision of Hidden
J, who had dismissed their application by way of judicial review of the
decision of the respondents, North Yorkshire County Council, to determine an
application under section 22 of the Planning and Compensation Act 1991.
Gordon QC and William Birtles (instructed by Richard Buxton, of Cambridge)
appeared for the appellants, Marilyn Brown and Leslie Cartwright.
North Yorkshire County Council) represented the respondents.
PILL
LJ: Interim development orders (IDOs) were
permissions for the winning and working of minerals or the working of mineral
waste originally granted after July 21 1943 and before July 1 1948; that is
before the Town and Country Planning Act 1947 took effect. They have been
preserved by successive planning Acts as valid planning permissions in respect
of development that had not been carried out by July 1 1948. They are referred
to in the Planning and Compensation Act 1991 (the 1991 Act) as ‘old mining
permissions’. In 1991 the Secretary of State for the Environment believed that
there could be in the order of 1,000 such permissions in England and Wales.
Section
22 of the 1991 Act provides:
(1)
In this section and Schedule 2 to this Act, ‘old mining permission’ means any
planning permission for development —
(a)
consisting of the winning and working of minerals; or
(b)
involving the depositing of mineral waste,
which
was deemed to be granted under Part III of the Town and Country Planning Act
1947 by virtue of section 77 of that Act (development authorised under interim
development orders after 21st July 1943).
(2)
An old mining permission shall, if an application under that Schedule to
determine the conditions to which the permission is to be subject is finally
determined, have effect as from the final determination as if granted on the
terms required to be registered.
(3)
If no such development has, at any time in the period of two years ending with
1st May 1991, been carried out to any substantial extent anywhere in, on or
under the land to which an old mining permission relates, that permission shall
not authorise any such development to be carried out at any time after the
coming into force of this section unless —
(a) the permission has effect in accordance
with subsection (2) above; and
(b) the development is carried out after such
an application is finally determined.
(4)
An old mining permission shall —
(a) if no application for the registration of
the permission is made under
such an application may be made; and
(b) if such an application is refused, cease
to have effect on the day following the date on which the application is
finally determined.
(5)
An old mining permission shall, if —
(a) such an application is granted; but
(b) an application under that Schedule to
determine the conditions to which the permission is to be subject is required
to be served before the end of any period and is not so served,
cease
to have effect on the day following the last date on which the application to
determine those conditions may be served.
(6)
Subject to subsection (3) above this section —
(a) shall not affect any development carried
out under an old mining permission before an application under that Schedule to
determine the conditions to which the permission is to be subject is finally
determined or, as the case may be, the date on which he permission ceases to
have effect; and
(b) shall not affect any order made or having
effect as if made under section 102 of or Schedule 9 to the principal Act
(discontinuance, etc orders).
(7)
This section and that Schedule, and the principal Act, shall have effect as if
the section and Schedule were included in Part III of that Act.
(The
principal Act is the Town and Country Planning Act 1990.)
Schedule
2 to the 1991 Act is entitled ‘Registration of Old Mining Permissions’. For
present purposes its contents need only be summarised. It provides a procedure
whereby the land owner may apply to the mineral planning authority (the
authority) for permission to be registered (para 1). The application is to be
served on the authority before the end of the period of six months beginning
with the day on which the Schedule came into force. Para 2 is headed ‘Determination
of conditions‘, and provides in so far as is material:
(1)
The conditions to which an old mining permission is to be subject —
(a) may include any conditions which may be
imposed on a grant of planning permission for development consisting of the
winning and working of minerals or involving the depositing of mineral waste,
(b) may be imposed in addition to, or in
substitution for, any conditions ascertained under paragraph 1(4)(a) above, and
(c) must include a condition that the winning
and working of minerals or depositing of mineral waste must cease not later
than 21st February 2042.
(2)
Where an application for the registration of an old mining permission has been
granted, any person who is an owner of any land to which the permission
relates, or is entitled to an interest in a mineral to which the permission
relates, may apply to the mineral planning authority to determine the
conditions to which the permission is to be subject.
(3)
The application must set out proposed conditions.
Para
2(4) specifies the time within which the application must be served on the
authority. Para 2(6) requires the authority to determine the conditions to
which the permission is to be subject, and provides that, in
out in the application. Provision is made for registration of the old mining
permission in the planning register, along with the conditions to which it is
to be subject (para 3). Para 5 confers upon an applicant a right of appeal to
the Secretary of State where the authority refuse to register an old mining
permission or, in granting an application to register, ascertain an area of
land, or conditions, which differ from those specified in the application.
Land
near Preston-under-Scar known as Wensley Quarries was subject to an IDO. It was
made in 1947 and was not subject to conditions. On September 30 1993 the
Secretary of State, following an inquiry conducted by an inspector, registered
a permission under section 22 in respect of an area of about 320 ha. On June 6
1995 the council determined an application for approval of conditions. They
approved conditions for the operation, restoration and aftercare of that
portion of the Wensley Quarries IDO in the ownership of Mr JB Hall. The
conditions differed from those applied for and, indeed, permit extraction on
only a small proportion of the relevant area covered by the IDO. Mr Hall has
appealed to the Secretary of State against the limitations imposed by the
conditions. The appeal has been held over pending determination of this appeal.
The
applicants, who are local residents, seek to quash the determination of
conditions. This is an appeal against the decision of Hidden J on November 6
1996 refusing the application. The issue is whether the directive of the
Council of the European Communities on the assessment of the effects of certain
public and private projects on the environment (85/337/EEC) applies to setting
conditions by virtue of section 22 of the 1991 Act on IDOs. It is common ground
that the directive has direct application in England and Wales. The Town and
Country Planning (Assessment of Environmental Effects) Regulations 1988 (the
1988 Regulations) have been enacted to give effect to the directive, but it is
common ground that it is the applicability of the directive to the procedure in
section 22 of and Schedule 2 to the 1991 Act that is determinative of the
present appeal. Is an environmental assessment, within the meaning of that term
in the directive, required before conditions are determined?
Article
2 of the directive provides that:
Member
states shall adopt all measures necessary to ensure that, before consent is
given, projects likely to have significant effects on the environment by virtue
inter alia of their nature, size or location are made subject to an
assessment with regard to their effects.
It
is common ground that the word ‘assessment’ means an environmental impact
assessment described in Article 2 and other articles of the directive.
‘Projects’ are those defined in Article 4, and the project under consideration
comes within the definition. ‘Consent’ is ‘development consent’ as defined in
Article 1. It means:
The
decision of the competent authority or authorities which entitles the developer
to proceed with the project.
The
Council is the competent authority under the article for present purposes.
The
issue is, therefore, whether the section 22 determination or determinations
are, singly or together, those ‘which entitle the developer to proceed with the
project’. The case for the authority is that the procedure is not one that
entitles the developer to proceed, but one that registers the pre-existing
entitlement of the developer to proceed. The entitlement emanates not from the
registration and imposition of conditions but from the old mining permission.
Hidden
J found that the directive did not have direct effect, but, upon the concession
now made that it does apply, it is not necessary to consider that point
further. The judge also found, and this is the finding now in issue, that it
was the old mining permission from which the consent and entitlement to quarry
Mr Hall’s land is obtained. The judge found that section 22 of the 1991 Act
clearly recognises that in its express terms, and it followed that the authority
were not granting planning permission on the basis of regulation 4 of the 1988
Regulations nor were they granting development consent within the terms of
Article 1 of the directive. They were going through the procedure under section
22 of the 1991 Act and were following the guidance set out in the coexistent
planning guidance of 1991, to be found in MPG 8 and MPG 9. There was no
reference at all to the requirement of an environmental statement or
environmental assessment in those documents. The judge added:
I
find that what the council were doing on June 6 1995 was in domestic law the
making of a lawful decision in relation to an IDO dating from 1947 in the
manner provided for in section 22 of the 1991 Act. The council were acting
lawfully in not requiring an environmental statement or an environmental
assessment, but in dealing with the matter in accordance with the 1991 Act and
the MPGs.
In
seeking to uphold that finding, Mr Timothy Straker QC submits that the decision
challenged is not a grant of anything, and certainly not a grant of consent. It
is merely the subjection of an earlier consent to a series of conditions. The
1991 procedure does not permit either the authority or the Secretary of State
to prevent the implementation of the old mining permission. Any attempt to
frustrate that implementation by inappropriate conditions could be challenged
in the courts. The conditions ‘must fairly and reasonably relate to the
permitted development’ (Lord Denning in Pyx Granite Co Ltd v Ministry
of Housing and Local Government [1958] 1 QB 554 at p572) and must be
‘fairly and reasonably related to the scope and object of the Act’ (Lord Guest
in Mixnam’s Properties Ltd v Chertsey Urban District Council
[1965] AC 735 at p761). For the purposes of the directive, it is submitted that
the ‘project’ is the digging out of minerals and the ‘consent’ is the grant of
the old mining permission in 1947.
That
approach, it is submitted, accords with public interest in the environmental
impact assessment being conducted at a time when the
points of detail are being resolved. In the preamble to the directive, the
council ‘affirm the need to take effects on the environment into account at the
earliest possible stage in all technical planning and decision making
processes’. In those situations, not including the present, in which it is the
practice to apply, first, for an outline permission and, later, for detailed
permission, the assessment should take place at the earlier stage, and, by
analogy, the stage at which conditions are determined is not the appropriate
stage for an environmental impact assessment.
Mr
Straker submits that, since it was not the purpose of the 1991 Act to give
effect to the directive, the requirement for an environmental assessment should
not be imposed by a side-wind. Neither the statute nor the guidance issued by
the Secretary of State upon IDOs in 1991 (MPG 8 and MPG 9) indicated the need
for an assessment of the type contemplated by the directive. It is recognised
that MPG 9 does include, at para 16, an exhortation to developers by stating
that ‘it is expected that all responsible minerals developers will wish to work
their sites in an environmentally acceptable way and be recognised as good
neighbours’. However, at para 2, it is stated that ‘conditions should not be
imposed which would fundamentally affect the economic structure of the
operation. The Government believe that in this way, and with good will on all
sides, both the need to provide proper protection for the environment and
amenity and the reasonable expectations of mineral operators can be
accommodated.’ At para 10 a distinction is drawn between places where ‘full
modern conditions’ will be generally appropriate and other cases. Ministerial
guidance notes do not, of course, determine the law, but, shorn of their
exhortations, the notes, in effect, acknowledge, it is submitted, that the
decision entitling the developer to proceed with the project had already been
taken when the old mining permission was granted.
Reliance
is placed by the authority on the decision of this court in Secretary of
State for Transport v Haughian [1997] Env LR 59. Hutchison LJ at p68
expressed the view that the directive did not cover ‘pipeline’ projects. The
expression was not, and probably cannot be, defined precisely, but Hutchison LJ
had in mind situations in which development consent procedures had been
initiated before the directive took effect.
Two
considerations must, in my judgment, be kept well in mind in this case. The
first is that the court is construing a particular term in the directive. The
second is that the court is construing it in relation to a specific English
statutory scheme. It is a scheme intended to apply to, and only to, old mining
permissions. I would accept that the purpose of the scheme is correctly stated
in para 7 of MPG 8: ‘To ensure that these old permissions are brought within
the modern planning system’.
For
the applicants, Mr Richard Gordon QC submits that application of the new
statutory regime involves a new development consent. The developer is not
entitled to proceed with the project unless and until he passes through the
gateway of registration and determination of conditions. The statutory scheme
removes the case from the ‘pipeline’ category. Mr Gordon relies upon the
preambular paragraph in the
significant effects on the environment and these projects must as a rule be
subject to systematic assessment . . .’. He submits that the European Court of
Justice has adopted a broad approach to the directive, for example in the
so-called Dutch Dykes case (Case C–72/95) [Aannamaersbedrijf PK
Kraaijveld v Gedeputeerde Staten Van Zuid-Holland [1997] Env LR
265]. The court stated (para 31) that ‘the wording of the directive indicates
that it has a wide scope and a broad purpose’. The case concerned modification
to dykes by way of development projects. The court held (para 42) that the
directive is to be interpreted ‘as including not only construction of a new
dyke but also modification of an existing dyke, involving its relocation,
reinforcement or widening, replacement of a dyke by constructing a new dyke in
situ, whether or not the new dyke is stronger or wider than the old one, or a
combination of such works’.
Mr
Gordon also relies upon the expression of opinion by the government in a
consultation paper of July 28 1997. The paper contemplates the implementation
of a directive, amending the directive now under consideration, on
environmental assessment. The opinion is expressed (para 61) that a planning
application under section 73 of the 1990 Act (that is, an application for the
development of land without complying with conditions subject to which a
previous permission was granted) was an application for ‘development consent’
within the meaning of the directive. Mr Straker relies not only on the fact
that government opinion is not the law, but submits that the situation is
different from that of an old mining permission, especially an unconditional
one. Further, parliament enacted the 1991 procedure with knowledge of the
directive, and did not include in it a provision that determination of
conditions under the procedure was a ‘development consent’.
I
have come to the conclusion that the determination of conditions under Schedule
2 to the 1991 Act is, in the present context, the decision that entitles the
developer to proceed with the project in the terms of the directive. In English
planning terms, I do see force in the submission that the grant of the old
mining permission is the relevant decision, in that it is at the stage when a
decision, in principle, is taken as to land use that the environmental
assessment is most useful. A modification, as in Dutch Dykes, may be
said to be a new project, but it is more difficult to hold that the
determination of conditions, which may be quashed on well established grounds,
is the relevant consent. However, in the present context, not only is the
determination of conditions literally the decision that ‘entitles the developer
to proceed’, in that he could not lawfully proceed without it, but the entire
purpose of the 1991 scheme is to regularise, and make subject to modern
control, permissions that had been granted over 40 years before 1991, and at a
time when there was no comprehensive planning control. The fact that old mining
permissions, as that in the present case, may be unconditional, an unthinkable
situation in modern times, demonstrates the comprehensive exercise necessary
under the 1991 procedures, and, in my view, contemplated by them. Section 22
provides that the permission shall cease to have effect if the appropriate
steps are not taken. The scheme imposes strict time-limits upon an owner who
wishes to implement his old mining permission.
Under
this particular statutory scheme, which requires registration and an
application to determine the conditions to which the permission is to be
subject, a consent is required, which is the development consent within the
meaning of Article 1 of the directive. Section 22(2) provides that the old
mining permission shall have effect as from the determination of conditions, as
if granted on the terms required to be registered.
The
scheme does draw a distinction between old mining permissions on land on which
development had been carried out to a substantial extent during the two years
ending May 1 1991, and other permissions. By a respondents’ notice, the
authority submit that such development had been carried out on the relevant
land. Not only did the inspector make no finding to that effect but such
development would not, in any event, affect the determination of the point now
under consideration. The right to mine ceases, in the absence of completing the
1991 procedures, whether or not development has occurred within the two-year
period up to May 1 1991. The entitlement to continue mining pending that
determination of conditions, which must necessarily take place if mining is to
continue, does not affect the nature of the 1991 scheme as I have found it to
be.
I
would allow the appeal and quash the determination of conditions. My conclusion
is specific to the statutory scheme under consideration and is not intended to
apply generally to schemes in which, in the interests of orderly planning, a
series of consents is required before development can proceed. The last of the
decisions giving consent is not necessarily or universally the relevant
decision for the purposes of Articles 1 and 2 of the directive, in my view.
HOBHOUSE
LJ: I agree.
EVANS
LJ: I also agree.
Appeal
allowed with costs; leave to appeal to the House of Lords refused.
