Environmental impact assessment — Old mining permission — Council Directive 85/337 — Meaning of ‘development consent’ — Whether the imposition of conditions is a ‘development consent’ within the meaning of the directive
In 1947 planning permission was granted, without
any time-limit or conditions, for quarrying in an existing quarry and over
322ha of surrounding countryside. Pursuant to the Planning and Compensation Act
1991, the appellant council determined conditions for the operation of the
quarry without undertaking an environmental impact assessment in accordance
with European Council Directive 85/337. The respondent householders’
application for judicial review to quash the determination, on the ground that
no environmental impact assessment had been undertaken, was allowed, on appeal,
by the Court of Appeal. The council appealed, contending that the obligation to
undertake an environmental assessment did not arise because the imposition of
conditions was not a ‘development consent’ within the meaning of the directive.
It was accepted that the source of the developer’s
right to proceed with the project was, and remained, the planning permission of
1947, even after the conditions had been imposed. Section 22(2) of the Planning
and Compensation Act 1991 expressly stated that the effect of the registration
of conditions was that the old mining permission had effect as if granted
subject to the conditions. However, the developer could not proceed unless the
planning authority had determined the appropriate conditions. So that, although
the determination did not decide whether the developer might proceed but
only the manner in which he might proceed, it was nevertheless a necessary
condition for his being entitled to proceed at all. This was sufficient to
bring it within the European concept of development consent. The purpose of the
directive was to ensure that planning decisions that might affect the
environment were made on the basis of full information. The directive did not
apply to decisions that involved merely the detailed regulation of activities
for which the principal consent, raising the substantial environmental issues,
had already been given. The procedure created by the 1991 Act was not merely a
detailed regulation of a project in respect of which the substantial
environmental issues had already been considered. The purpose of the procedure
was to give the mineral planning authority a power to assess
granted without, to modern ways of thinking, any serious consideration of the
environment at all. The procedure was a new and free-standing examination of
the issues and could require the information provided by an environmental
impact assessment. It was, therefore, a ‘development consent’ within the
meaning of the directive: see p121E et seq.
Aannamaersbedrijf PK Kraaijveld v Gedeputeerde Staten Van Zuid-Holland, Dutch Dykes Case
C–72/95 [1997] Env LR 265; [1996] ECR I–5403
R v Secretary
of State for the Environment, ex parte Greenpeace [1994] 1 WLR 570; [1994]
4 All ER 352; [1994] Env LR 401, QB
Appeal against the
decision of the Court of Appeal
This was an appeal against the decision of the
Court of Appeal, which allowed an appeal by the applicants, Marilyn Brown and
Lesley Cartwright, against the dismissal by Hidden J of their application for
judicial review of a decision by North Yorkshire County Council determining an
application for conditions to which an old mining permission was to be subject
under section 22 of and Schedule 2 to the Planning and Compensation Act 1991.
by the solicitor to North Yorkshire County Council) appeared for the
appellants.
(instructed by Richard Buxton, of Cambridge) represented the respondents.
LORD NICHOLLS OF BIRKENHEAD: My lords, I have had the advantage of reading in draft the speech
of my noble and learned friend Lord Hoffmann. For the reasons he gives, and
with which I agree, I would dismiss this appeal.
LORD GOFF OF CHIEVELEY: My lords, I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Hoffmann. For the reasons he
gives, I too would dismiss the appeal.
LORD JAUNCEY OF TULLICHETTLE: My lords, I have had the advantage of reading in draft the speech
of my noble and learned friend Lord Hoffmann. For the reasons he gives, I too
would dismiss the appeal.
LORD LLOYD OF BERWICK: My lords, I have had the advantage of reading in draft the speech
of my noble and learned friend, Lord Hoffmann. For the reasons he gives, I too
would dismiss the appeal.
LORD HOFFMANN: My
lords, Preston-under-Scar is a village in North Yorkshire designated as a
conservation area. It lies just outside Yorkshire Dales National Park. Near the
village is Wensley Quarry, from which limestone has been extracted for many
years. Planning permission was granted in 1947. This old permission is not
subject to any time-limit or
322ha of the surrounding countryside.
Section 22 of and Schedule 2 to the Planning and
Compensation Act 1991 gave North Yorkshire County Council, as ‘mineral planning
authority’, power to impose conditions upon the operation of the quarry. The
council consulted widely and advertised their intention to determine the
conditions. Many people sent written representations. But the council did not
undertake an environmental impact assessment in accordance with the European
Union Council Directive of 27 June 1985 (85/337/EEC). This directive was
adopted to protect the environment throughout the European Union by requiring
member states to ensure that planning decisions likely to have a significant
environmental effect were taken only after a proper assessment of what those
effects were likely to be. It requires that before the grant of ‘development
consent’ for specified kinds of project, member states should ensure that an
environmental impact assessment is undertaken.
On 6 June 1995 the council determined the
conditions. The respondents, who are householders in the village of
Preston-under-Scar, applied for judicial review to quash the determination on
the ground that no environmental impact assessment had been undertaken. The
council say that an assessment was not required because the imposition of
conditions is not a ‘development consent’ within the meaning of the directive.
The consent that allows the quarry to operate was the planning permission
granted in 1947. This remains in force. The UK government has given effect to the
directive by making the Town and Country Planning (Assessment of Environmental
Effects) Regulations 1988, which determine the circumstances in which an
environmental impact assessment will be required. But they apply only to cases
in which planning permission is granted. The council take the view that the
directive does not require anything more.
The appeal therefore turns upon the meaning of the
concept of ‘development consent’ in the directive. This is a concept of
European law, which has to be applied to the planning systems of all the member
states. To ascertain its meaning, it is necessary to examine the language and,
in particular, the purpose of the directive. One must then examine the
procedure for determining conditions as part of the UK planning system and
decide whether it should be characterised as a granting of ‘development
consent’ within the meaning of the directive.
I start, therefore, with the directive. The sixth
recital states the objective:
Whereas development consent for public and
private projects which are likely to have significant effects on the
environment should be granted only after proper assessment of the likely
significant environmental effects of these projects has been carried out:
whereas this assessment must be conducted on the basis of the appropriate
information supplied by the developer, which may be supplemented by the
authorities and by the people who may be concerned by the project in question;
‘Development consent’ is defined in Article 1.2 as
‘the decision of the competent authority or authorities which entitles the
developer to proceed with the project’. The term ‘project’ is widely defined to
include, specifically, ‘the extraction of mineral resources’.
The general obligation imposed by the directive is
contained in Article 2.1:
Member States shall adopt all measures necessary
to ensure that, before consent is given, projects likely to have significant
effect on the environment by virtue inter alia, of their nature, size or
location are made subject to an assessment with regard to their effects.
These projects are defined in Article 4.
Article 4 distinguishes between certain types of
major project (such as oil refineries, nuclear power stations and motorways)
that are conclusively presumed to have significant environmental effect and
other kinds of project that may or may not have such an effect, depending upon
the circumstances. For projects of the former kind, which are listed in annex
I, an assessment is mandatory. For the latter kind, listed in annex II, an
assessment must be undertaken ‘where Member States consider that their
characteristics so require’. For this purpose the member state must specify
which projects have such characteristics or establish criteria by which the
question can be decided. Articles 5 to 10 specify the kind of information
needed for the assessment and the procedure that must be followed.
Quarrying (mineral extraction) falls within annex
II. So the UK is required to establish criteria for determining whether a grant
of ‘development consent’ for quarrying should require an environmental impact
assessment. As I have said, the Town and Country Planning (Assessment of
Environmental Effects) Regulations 1988 were intended to establish such
criteria. These provide that an assessment shall be required for developments
falling within annex II if the development ‘would be likely to have significant
effects on the environment by virtue of facts such as its nature, size or
location’. But they apply only to a grant of planning permission.
I consider next the procedure by which the
conditions are determined under the Planning and Compensation Act 1991. Old
mining permissions such as that for Wensley Quarry exist in many parts of the
country. They were granted under the Town and Country Planning (General Interim
Development) Order 1946 or preceding legislation and continued in force by
section 77 of the Town and Country Planning Act 1947 and subsequent
legislation. Forty years later, in a time of greater environmental
consciousness, of which the directive is one manifestation, they gave rise to
two kinds of problem. First, there was no register from which their existence
could be discovered. A register of planning applications was first introduced
by the 1947 Act but did not record earlier permissions that were deemed to
continue. So the commencement or resumption of mining or quarrying sometimes
came as an unpleasant surprise to people that had bought property in the area
many years after the permission had been
Quarry) indefinite in duration and subject to no conditions for the protection
of the local environment, such as limits on hours of working, noise,
vibrations, dust emissions and so on.
Section 22 of and Schedule 2 to the Planning and
Compensation Act 1991 addressed both these points. First, it required the
owners of land with the benefit of old mining permissions to apply to the local
mineral planning authority for their registration within six months of 25
September 1991, the date on which Schedule 2 was brought into force: para 1(3).
If they did not do so, the permission ceased to have effect: section 22(4)(a).
If they applied in time and the mineral planning authority were satisfied that
the permission existed, they were obliged to grant the application: para 1(4).
By these means, a register of all extant permissions was created.
The next stage was to settle suitable conditions.
Once the application for registration had been granted, the owner of the land
became entitled to apply to the mineral planning authority to determine the
conditions to which the permission was to be subject: para 2(2). The
application had to be made (subject to any agreed extension) within 12 months of
the grant of registration or the determination of an appeal against its
refusal: para 2(4)(b). If no application was made within such period, the
permission ceased to have effect. The landowner was required, in the first
instance, to propose his own conditions, but the mineral planning authority
were entitled (subject to an appeal to the Secretary of State) to 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’: para 2(1)(a). These words plainly confer a very
wide discretion to impose conditions for the protection of the environment,
subject of course to any policy guidance that may be given by the Secretary of
State. In addition, the mineral planning authority were required to impose a
condition that working should cease not later than 21 February 2042: para
2(1)(c).
The Schedule gave the mineral planning authority
three months in which to determine the conditions. If they failed to do so, it
was treated as if they had determined that the permission was to be subject to
the conditions set out in the application: para 2(6)(b). Once the conditions
had been finally determined, the conditions were required to be registered (para
3(2)) and the old permission had effect as if it had been granted subject to
those conditions: section 22(2).
In the period before the final determination of
the conditions, section 22 distinguishes between what is sometimes called a
‘dormant permission’, where, in the period of two years before 1 May 1991, no
development had been carried out to any substantial extent on the land to which
the permission related, and a permission by virtue of which extraction had been
going on. In the case of a dormant permission, no extraction could take place
until the conditions had been finally determined: section 22(3). In the case of
an active permission, the owner could continue to operate as before, subject to
having to comply with the
lapsed on account of his failure to apply for their determination.
Pursuant to these provisions, the owners of the
land enjoying the benefit of the Wensley Quarry permission applied to the
council for registration, which took place on 30 September 1993. They then
applied for the determination of conditions and the council, after the
consultation to which I have referred, determined the conditions.
The imposition of conditions upon the exercise of
a planning permission usually takes place concomitantly with the grant of the
permission. There is no question of having to characterise the nature of the
imposition of the conditions separately from the grant of the permission.
Section 22 is, so far as I am aware, unique in UK planning law in conferring a
general duty upon planning authorities to consider whether to impose conditions
upon a class of planning permissions that may have subsisted untrammelled for
half a century. This duty to consider arises because the legislature has
created a machinery by which, on penalty of forfeiting the benefit of the
permission, owners of land have to register and then submit themselves to the
decision of the mineral planning authority as to what conditions should be
imposed. Unless the planning authority are given the opportunity to impose such
conditions, the planning permission becomes void.
Can it therefore be said that the decision
imposing the conditions is a ‘decision of the competent authority or
authorities which entitles the developer to proceed with the project’ — the
definition of a ‘development consent’ in the directive? The imposition of
conditions is not a decision that the developer shall be entitled to
proceed. Mr Timothy Straker QC, who appeared for the council, was quite right
in saying that the source of the developer’s right to proceed with the project
was, and remained, the planning permission of 1947, even after conditions had
been imposed. Section 22(2) expressly says that the effect of the registration
of conditions is that the old mining permission has effect as if granted
subject to the conditions. On the other hand, the developer cannot proceed
unless the planning authority have determined (or are deemed to have
determined: para 2(6)(b)) the appropriate conditions. So that, although the
determination does not decide whether the developer may proceed but only
the manner in which he may proceed, it is nevertheless a necessary condition
for his being entitled to proceed at all.
Is this sufficient to bring it within the European
concept of a development consent? I think it is. The purpose of the directive,
as I have said, is to ensure that planning decisions that may affect the
environment are made on the basis of full information. In Case C–72/95 Aannamaersbedrijf
PK Kraaijveld v Gedeputeerde Staten Van Zuid-Holland, Dutch Dykes [1996]
ECR I–5403, the European Court of Justice said that ‘the wording of the
Directive indicates that it has a wide scope and a broad purpose’. A decision
as to the conditions under which a quarry may be operated may have a very
important effect on the environment. It can protect it by imposing limits on
noise, vibration and dust, requiring the
the landscape, and in many other ways. Without such conditions, the
unrestricted operation of the quarry might well have a significant effect on
the environment. It cannot therefore be said that the environmental effect of
the quarry was determined once and for all in 1947. One of the purposes of the
1991 Act was to allow mineral planning authorities to assess those effects in
the light of modern conditions.
The position would be different if, upon a proper
construction of the UK legislation, the determination of conditions were merely
a subsidiary part of a single planning process in which the main decision
likely to affect the environment had already been taken. In such a case, the
environmental impact assessment (if any) would have been made at the earlier
stage and no further assessment would be required. Or, in the case of a project
in which an application for the principal consent had been made before the
directive came into force on 3 July 1988, no assessment would be required at
all. This is the effect of the ‘pipeline’ cases in which it has been
unsuccessfully argued that assessments should be undertaken for projects in
which the procedure for obtaining consent (or the principal consent) was
already under way before the commencement date. The only one of these cases to
which I need refer is the decision of Potts J in R v Secretary of
State for the Environment, ex parte Greenpeace [1994] 4 All ER 352. The
case concerned British Nuclear Fuels Ltd’s (BNFL) nuclear waste reprocessing
plant at Sellafield. Outline planning permission for the construction of the
plant had been granted in 1978. Full planning permission was granted in 1983
and the plant completed by 1992. But in order to operate the plant, BNFL
required authorisation under the Radioactive Substances Act 1993. Without such
authorisation, BNFL could not lawfully dispose of radioactive waste from its
premises. Potts J held that the granting of authorisation under the 1993 Act
was not the decision that entitled BNFL to proceed with the ‘project’ of
disposing of nuclear waste. He said that the construction of the plant and its
use for disposal of nuclear waste were all part of one project for which
consent had been given before the directive came into force.
The principle in this and similar cases seems to
me to be clear: the directive does not apply to decisions that involve merely
the detailed regulation of activities for which the principal consent, raising
the substantial environmental issues, has already been given. I express no view
about the way in which this principle was applied to the different facts of the
various cases that were cited. It seems to me clear, however, that it can have
no application to this one. The procedure created by the 1991 Act was not
merely a detailed regulation of a project in respect of which the substantial
environmental issues had already been considered. The purpose of the procedure
was to give the mineral planning authority a power to assess the likely
environmental effects of old mining permissions that had been granted without, to
modern ways of thinking, any serious consideration of the environment at all.
It is true that the power to deal with these effects was limited to the
imposition of conditions rather than complete prohibition. But the procedure
was
therefore, in my opinion, require the information provided by an environmental
impact assessment. It was therefore a ‘development consent’ within the meaning
of the directive.
I add two footnotes. First, it was suggested in
argument that there might be a distinction between ‘dormant permissions’, where
work may not start until the conditions have been determined (section 22(3)),
and ‘active permissions’, in which it may go on unrestricted until either the conditions
are imposed or the permissions lapse on account of failure to apply for their
determination. I do not think that this distinction matters. In either case, a
determination of conditions is a decision necessary to entitle the developer to
commence or continue with the development. Second, it was submitted that in a
case in which a mineral planning authority fail to deal with an application to
determine conditions and a deemed determination on the conditions proposed by
the developer takes effect under para 2(6)(b) of Schedule 2, the court should
disapply the deeming provision on the ground that it would enable a mineral
planning authority merely by inaction to avoid their European law obligation to
undertake an environmental impact assessment. This question does not arise in
the present case and I say nothing about it.
For these reasons, which are, I think, no more
than an elaboration of the reasons given by Pill LJ in the Court of Appeal and
with which I agree, I would dismiss the appeal. This does not of course mean
that the council are necessarily obliged to undertake an assessment. That
depends upon whether they take the view that the characteristics of the
decision require one. It is, however, for the Secretary of State to establish
the criteria for making this decision in accordance with Article 4.2 of the
directive, as he has done for planning permissions in the Town and Country
Planning (Assessment of Environmental Effects) Regulations 1988, and for the
council to apply those criteria.
Appeal dismissed.
