IN THE SUPREME COURT OF JUDICATURE QBCOF 96/1645/D
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Tuesday 27th January, 1998
B e f o r e:
LORD JUSTICE EVANS
LORD JUSTICE HOBHOUSE
LORD JUSTICE PILL
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R E G I N A
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NORTH YORKSHIRE COUNTY COUNCIL
EX PARTE MARILYN BROWN AND LESLEY CARTWRIGHT
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(Handed down Transcript of Smith Bernal Reporting Ltd
180 Fleet Street, London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR R GORDON (Instructed by Messrs Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant
MR T STRAKER (Instructed by North Yorkshire County Council, North Yorkshire DL7 8AD) appeared on behalf of the Respondent
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J U D G M E N T
(As approved by the Court)
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Tuesday 27th January, 1998
LORD JUSTICE PILL: Development Orders ("IDOs") were permissions for the winning and working of minerals or the working of minerals waste originally granted after 21 July 1943 and before 1 July 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 which had not been carried out by 1 July 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 of them in England and Wales.
S 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 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 that Schedule, cease to have effect on the day following the last date on which 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 of 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 the permission to be registered (paragraph 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. Paragraph 2 is headed "Determination of conditions" and provides insofar 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.
Paragraph 2(4) specifies the time within which the application must be served on the authority. Paragraph 2(6) requires the authority to determine the conditions to which the permission is to be subject and provides that, in default of determination, the permission is to be subject to the conditions set 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 (paragraph 3). Paragraph 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 30 September 1993, the Secretary of State, following an Inquiry conducted by an Inspector, registered a permission under s 22 in respect of an area of about 320 hectares. On 6 June 1995, the Council determined an application for approval of conditions. They approved conditions for the operation, restoration and after care of that portion of the Wensley Quarries IDO in the ownership of Mr J B 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 6 November 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 s 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 s 22 of the 1991 Act and Schedule 2 which 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 s 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 which entitles the developer to proceed but one which 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 s 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 s 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 was doing on 6 June 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 s 22 of the 1991 Act. The council was 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 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  1 QB 554, 572) and must be "fairly and reasonably related to the scope and object of the Act" (Lord Guest in Mixnam's Properties Ltd v Chertsey UDC  AC 735, 761). For the purposes of the directive, the "project" is the digging out of minerals and the "consent" is the grant of the old mining permission in 1947, it is submitted.
That approach, it is submitted, accords with the public interest in the environmental impact assessment being conducted at a time when the land use in principle is being decided rather than at the later stage where 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 paragraph 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 paragraph 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 paragraph 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 Houghian  Env LR 59. Hutchison LJ at p 68 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 paragraph 7 of MPG 8: "To ensure that these old permissions are brought within the modern planning system".
For the applicants, Mr 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 directive which provides: "Whereas projects belonging to certain types have 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). The Court stated (paragraph 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 (paragraph 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 28 July 1997. The paper contemplates the implementation of a directive, amending the directive now under consideration, on environmental assessment. The opinion is expressed (paragraph 61) that a planning application under s 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 which 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 which "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 which 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. S 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. S 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 with 1 May 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 1 May 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.
LORD JUSTICE HOBHOUSE: I agree.
LORD JUSTICE EVANS: I also agree.
ORDER: Appeal allowed with costs. Order of certiorari to quash the decision referred to in paragraph 2 of Form 86a. Leave to appeal to the House of Lords refused.