HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Goff of Chieveley Lord Jauncey of Tullichettle
Lord Lloyd of Berwick Lord Hoffmann
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
NORTH YORKSHIRE COUNTY COUNCIL
EX PARTE BROWN AND ANOTHER
ON 11 FEBRUARY 1999
LORD NICHOLLS OF BIRKENHEAD
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
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
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
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.
Preston-under-Scar is a village in North Yorkshire, designated as a Conservation Area. It lies just outside the 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 conditions. It allows quarrying not merely in the existing quarry but over some 322 hectares of the surrounding countryside.
Section 22 and Schedule 2 of the Planning and Compensation Act 1991 gave the North Yorkshire County Council, as "mineral planning authority", power to impose conditions upon the operation of the quarry. The Council consulted widely and advertised its 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 says that an assessment was not required because the imposition of conditions is not a "development consent" within the meaning of the Directive. The consent which allows the quarry to operate was the planning permission granted in 1947. This remains in force. The United Kingdom 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 takes 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 United Kingdom 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 prior 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 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.
"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) which are conclusively presumed to have significant environmental effect and other kinds of project which may or may not have such an effect, depending upon the circumstances. For projects of the former kind, which are listed in Annex 1, 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 which must be followed.
Quarrying (mineral extraction) falls within Annex II. So the United Kingdom is required to establish criteria for determining whether a grant of "development consent" for quarrying should require an environment 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 which were deemed to continue. So the commencement or resumption of mining or quarrying sometimes came as an unpleasant surprise to people who had bought property in the area many years after the permission had been granted. Secondly, the old permissions were frequently (as in the case of Wensley 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 and Schedule 2 of 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 6 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 was satisfied that the permission existed, it was obliged to grant the application: para. 1(4). By this 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 land owner was required in the first instance to propose his own conditions, but the mineral planning authority was 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 which may be given by the Secretary of State. In addition, the mineral planning authority was 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 it failed to do so, it was treated as if it 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 conditions when they were determined or to cease operations if the permission 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 United Kingdom planning law in conferring a general duty upon planning authorities to consider whether to impose conditions upon a class of planning permissions which 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 is 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. Straker Q.C., 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 has determined (or is deemed to have determined: paragraph 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 which may affect the environment are made on the basis of full information. In Case C-72/95 Aannemersbedrijf P.J. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland  E.C.R. 1-5403, 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 preservation of important natural habitats or the reinstatement of damage to 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 United Kingdom legislation, the determination of conditions was 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 Reg. v. Secretary of State for the Environment, Ex parte Greenpeace Ltd.  4 All E.R. 352. The case concerned the British Nuclear Fuels Ltd. ("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 which 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 which 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 which 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 which 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 nevertheless a new and freestanding examination of the issues and could 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 lapses 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. Secondly, it was submitted that in a case in which a mineral planning authority fails to deal with an application to determine conditions and a deemed determination on the conditions proposed by the developer takes effect under paragraph 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 its 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 L.J. in the Court of Appeal and with which I agree, I would dismiss the appeal. This does not of course mean that the Council is necessarily obliged to undertake an assessment. That depends upon whether it takes 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.