R. v. North Yorkshire County Council exp Brown and Cartwright

Transcript date:

Wednesday, November 6, 1996

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Hidden J

IN THE HIGH COURT OF JUSTICE CO-2537-95

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Wednesday 6th November 1996

B e f o r e:

MR JUSTICE HIDDEN

- - - - - - -

R E G I N A

v

NORTH YORKSHIRE COUNTY COUNCIL

EX PARTE BROWN

- - - - - -

Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 404 1400 Fax No: 0171 404 1424

(Official Shorthand Writers to the Court)

- - - - - -

MR R GORDON QC (instructed by Richard Buxton, Environmental Lawyer, Cambridge) appeared on behalf of the Appellant

MR T STRAKER QC (instructed by North Yorkshire County Council) appeared on behalf of the Respondent

J U D G M E N T

(As Approved by the Court)

Crown Copyright

Wednesday 6th November 1996

MR JUSTICE HIDDEN: The decision sought to be impugned in this case is that of the North Yorkshire County Council, whereby, on 6th June 1995, they determined an application by J B Hall for conditions for quarrying under an Interim Development Order at Preston-under-Scar without the matter having been subject to environmental assessment pursuant to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 and/or EA Directive 85/337/EEC (hereinafter called "the EU Directive") on the assessment of the effects of certain public and private projects on the environment and in particular without the applicant having submitted an Environmental Statement.

The relief sought includes a declaration that such determination in the absence of environmental assessment was unlawful, certiorari to quash the decision, a declaration that the Regulations apply and the Directive applies to the said application and remission of the said decision for the determination of any application for conditions in accordance with the findings of the Court and specifically only following the submission by J B Hall of an Environmental Statement pursuant to the Regulations and/or the Directive.

North Yorkshire County Council (the Respondent) is the Mineral Planning Authority for the area which includes the village of Preston-upon-Scar in Wensleydale, a village which lies at the foot of a 'Limestone Scar', the slopes of which are partly grassland and partly wooded. The applicants are adjoining land owners. Land immediately behind the village including the Scar itself and the slopes beneath it, is subject to an Interim Development Order (IDO) which was made in 1947 and authorized the extraction of minerals.

No extraction has actually taken place on the relevant land since 1947. However, such permissions granted after 21st July 1943 and before 1st July 1948 were preserved by successive planning Acts as valid planning permissions in respect of development which had not been carried out by 1st July 1948. They were therefore in 1991 "Old Mining Permissions" and that is how they are referred to in the Planning and Compensation Act of that year.

Section 22 of the 1991 Act reads:

"(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."

I note in particular the use of the words "that permission shall not authorise any such development" in that subsection 22(3), which has relevance in my view to arguments put to me as to the nature and effect of the relevant IDO.

Schedule 2 paragraph 1 entitles an owner of land to which an old mining permission relates to apply to the Mineral Planning Authority for the permission to be registered. The application must specify the development claimed to be authorised by the permission and the conditions, if any, to which the permission is subject. The application must be served on the Mineral Planning Authority (MPA) within six months from the coming into force of the Act.

Moving to Schedule 2, sub-paragraph 4 of paragraph 1 of Schedule 2 states that:

"On an application under this paragraph the Mineral Planning Authority must-

(a) if they are satisfied that apart from section 22(3) of this Act the permission authorises development consisting of the winning and working of minerals involving the depositing of the mineral waste ascertain-

(i) the area of land to which the

permission relates, and

(ii) the conditions (if any) to which

the permission is subject,

and grant the application, and

(b) in any other case refuse the application."

I note again for the same purposes the words "the permission authorises development" in the sub-paragraph I have just quoted.

The conditions to which an old mining permission is to be subject fall to be dealt with under paragraph 2 of the Schedule and "may include any conditions which may be imposed on a grant of planning permission for a development consisting of the winning and working of minerals or involving the depositing of mineral waste" and may be imposed in addition to or in substitution for any conditions under paragraph 1(4)(a). They must also include a condition for the ceasing of the work not later than 21st February 2042.

Paragraph 2(2) of the Schedule provides:

"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."

Again in my view the words "the conditions to which the permission is to be subject" are important in relation to what affect the conditions have on the permission.

Under sub-paragraph (6) of paragraph 2 the Mineral Planning Authority must determine the conditions on which the permission is to be subject.

Under paragraph 5(1) of the Schedule there is a right of appeal against the refusal to register and, more significantly, under paragraph 5(2) against the determination of conditions which differ from those set out in the application to the Secretary of State.

Mr Hall did in fact lodge an appeal against the conditions in this case on 17th November 1995 and the Secretary of State for the Environment confirmed on 16th February 1996 that that appeal hearing was to be postponed until after the decision was given in the instant application.

Mr Hall had put in his application for conditions for his land within the Wensley Quarry IDO on 23rd December 1994, describing the land as "Land at Wensley Quarries" and describing it as "Rough Grazing and Scrubland". He set out his proposed conditions at paragraph 5(1) of the application form.

The Respondent considered the application for determination of conditions at the meeting on 6th June 1995 and recommended the proposed planning conditions set out in the bundle at pages 80 to 83.

Though the Respondent council had a great deal of environmental data before it (see pages 76 to 79) Mr Hall had not filed and did not file with the Respondent council an environmental statement such as would comply with the EA Directive or the EA Regulations SI 1988/1199.

It is the Applicants' case that the environmental assessment requirements of the EA Directive clearly apply to the Planning and Compensation Act procedure as a matter of United Kingdom and European Union law. The Applicants say that, even if there were any doubt about that, since the law is certainly not clear the other way, then if the court were unsure, the correct procedure would be a reference to the European Court of Justice under Article 177 of the Treaty.

The case for the Respondent, on the other hand, is that there was no such requirement because the planning permission had already been granted under part 3 of the Town and Country Planning Act 1947. The Respondent says that is made clear by section 22 of the Planning and Compensation Act 1991. The Respondent contends that the applicants are plainly wrong in submitting that the Respondent was either granting planning permission or development consent when all it was doing was determining conditions in relation to a planning permission already granted.

I turn now to the Directive itself. The preamble to the EA Directive states, inter alia, that "whereas projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment" and goes on later to say "whereas for projects which are subject to assessment a certain minimal amount of information must be supplied concerning the project and its effects".

Article 1 of the Directive enacts in paragraph 1 that "this Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects of the environment".

In paragraph 2 of Article 1 "Project" is defined as including "other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources."

"Developer" is defined as meaning "the applicant for authorisation for a private project or the public authority which initiates a project". I note in passing the use of the word "authorisation" and that definition. "Development consent" is defined as "the decision of the competent authority or authorities which entitles the developer to proceed with the project." For the same purpose as earlier in this judgment I again note the words "the decision which entitles the developer to proceed."

Article 2 paragraph 1 enacts 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."

These projects are defined in Article 4 of which paragraph 2 provides that "projects of the classes listed in Annex II shall be made subject to an assessment in accordance with Articles 5-10 where Member States consider their characteristics so require."

Annex II paragraph 2(j) applies to "extraction of minerals other than metalliferous and energy producing minerals by open cast mining."

Article 5, paragraph 1, provides that "in the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5-10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex III..."

Article 3 provides that the environmental impact assessment must identify, describe and assess the direct and indirect effects of the project on human beings, fauna and flora, soil, water, air, climate and landscape, and the interaction between all those factors and, finally, the effects on material assets and the cultural heritage.

There are thus detailed provisions under the Directive which require the environmental effects of the project to be taken into consideration before consent is granted and which involve the developer in preparing an environmental statement which must cover certain specified points and must be publicised.

However, Government guidance on the implementation of the Planning and Compensation Act 1991 in relation to conditions does not mention the need for any environmental assessment. The situation, I am told by counsel, is that Mineral Planning Authorities such as the Respondent have taken the line that in the absence of positive guidance they are not required (and indeed do not have the power) to require an environmental assessment. That guidance can be found in MPG 9: Planning and Compensation Act 1991: Interim Development Order Admissions (IDOs) - conditions at tab 5, and MPG 8: Planning and Compensation Act 1991: Interim Development Order Positions (IDOs) - Statutory Provisions and Procedures at tab 4, to which I shall have to come later in this judgment.

In this case it is common ground that no environmental statement was ever provided by Mr Hall and no environmental assessment has ever taken place.

Mr Gordon for the applicants dealt separately with the EA issue in United Kingdom law and in European law. As to UK law he took me to the EA Regulations, the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, and particularly Regulation 4 at page 13 of the bundle. He also took me to MPG 9 and in particular to paragraphs 2 and 3 thereof. Paragraph 2 reads as follows:

"The Government takes the view that this is an important opportunity to secure improved operating and environmental standards. Minerals are vital to the economy but it is essential that they are extracted in an environmentally acceptable way. They therefore look to the minerals industry in the first instance to demonstrate a commitment to raising standards and operating as good environmental neighbours, and to mineral planning authorities to recognise that, in relation to working sites, 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.

3. MPG 8 sets out the procedures to be followed in applying for registration and for the determination of conditions. This MPG gives advice on the considerations to be taken into account by the applicants and MPAs in preparing and determining the conditions to which registered permissions should be subject. It is for applicants in the first place to submit schemes of conditions for the consideration of the MPA, and for the MPA to determine whether the submitted conditions are acceptable or should be modified or added to in the light of the particular circumstances of the case and the following guidance. Applicants have a right of appeal to the Secretary of State against the imposition of unreasonable conditions. But in all cases, it is expected that applicants will seek to submit conditions which provide proper environmental protection and ensure that future operations are carried out to an acceptable standard having regard to the reasonable expectations of both residents and minerals operators."

He also took me to paragraphs 10 and 11 at page 114 of MPG 9 which deal with conditions. They read:

"In considering the types of conditions that will be appropriate in any particular case, regard should be had to all planning considerations including: the type of mineral; the nature and extent of existing working; the location and planning history of the site; land quality and proposed after-use; and, the availability of suitable restoration materials. Distinctions will need to be drawn between 'dormant' permissions, where full modern permissions will be generally appropriate, and 'active' permissions, where it is necessary to distinguish between conditions which deal with the environmental and amenity aspects of working the site and conditions which would fundamentally affect the economic structure of the operation- e.g. conditions which would significantly restrict the total quantity of mineral that could be extracted, or the rate at which it could be extracted having regard to the existing investment in and the current structure of the operation.

11. However, further distinctions may need to be drawn depending on the nature and extent of existing workings. Full modern conditions will always be appropriate to 'dormant' permissions where no working has taken place for a number of years. But exceptionally, where an applicant can demonstrate that a 'dormant' permission has been active in recent years; that operations have been only temporarily suspended; and, that the imposition of full modern conditions would fundamentally affect the economic structure of the operation, it may be appropriate to apply a degree of flexibility."

Mr Gordon submitted that according to MPG 9 applications for conditions were to be treated as if an application for normal planning consent was being made. He said there was no indication in the UK Regulations or in MPG 9 or any other guidance that an EA was not required. Even if there were, the relevant consideration was the legal requirement. There was no reason for not having an EA in practice. It was common sense that when determining conditions for controlling effects of activity on the environment, one should have an assessment of what the effect would be. He said that there was an obligation for UK rules to be interpreted to accord with EU legislation on the basis of the Marleasing principle referring to what had been said in Marleasing SA v La Commercial Internacional d'Alamentasior (1990) ECR 4135.

As to the EA issue and European law, Mr Gordon submitted that if the matter was already clear in the applicants' favour, that in UK law was the end of it. If it was not clear in UK law then he submitted it was clear in EU law. It was common ground that the EU Directive potentially applied to this activity (see Directive Annex II paragraph 2(j)) and would potentially apply in this case owing to the likelihood of significant environmental effects.

Mr Gordon submitted that the Directive had direct effect for the purpose of being able to claim under this head, and he relied for support on the conclusions of the Advocate General in the Dutch Dykes case at Tab 8, paragraph 70, page 33, where it was said:

"In the light of these considerations, we consider that Articles 2, Paragraph 1 and 4, Paragraph 2, read in conjunction with Article 6, paragraph 2, of the Directive, confers rights on private citizens."

Mr Gordon says that the simple analysis of the problem is that the winning of minerals cannot proceed here unless and until conditions are determined (see section 22(3) 1991 Act). The old permission takes effect as from the final determination (see section 22(2)). The determination of conditions involves a new consent procedure, which was commenced after the implementation of the EA Directive in July 1988 and therefore the provisions of the Directive apply, especially Article 2(1).

That was the simple analysis but he also makes a more complicated analysis, if the new procedure is seen as a continuation of the IDO procedure which throws up the practical problem in relation to applications for consent made before the July 1988 implementation of the EA Directive, and grants of consent made later. He says that there are many disputes about this and the issue has still not been resolved in the European Court of Justice. He refers to Grosskrotzenburg (Tab 7, paragraph 28) where it is said that:

"In Case C-396/92 Bund Naturschutz in Bayern and Others v Freistaat Bayern [1994] ECR 1-3717, paragraphs 19 and 20, the Court of Justice ruled that, regardless of whether the directive permits a Member of State to waive the obligations concerning the environmental impact assessment in respect of consent procedures already initiated before the deadline for implementation, namely 3rd July 1988, the directive in any case precludes such a waiver for procedures initiated after that date."

There is, however, an indication from the Advocate General, so submitted Mr Gordon, in Bund Naturschutz, that whatever the position may be in genuine 'Straddling' cases the EA should at least apply in these sorts of case when procedure stretches over such a long time. The relevant paragraph reads:

"42. Nor can it be excluded that there might be cases where such significant changes are made to the project or the consent procedure for the project is postponed for such long periods that it might be right in order to ensure a compliance with the directive to hold that a new consent procedure should be initiated accompanied by an obligation to carry out an environmental impact assessment."

Therefore, says Mr Gordon, if it can be argued that the new procedure is merely part of a long continuing procedure begun in 1947, then the matter clearly should be referred to the European Court of Justice for a preliminary ruling under Article 177 of the Treaty. The Respondent does not accept that this was a 'continuing procedure', as the Respondent council says that the 1947 IDO permission was valid and required nothing further to be done. The Applicants' contention is that the IDO was invalidated by the 1991 Act, subject to revival by what is clearly a new consents procedure. I shall have a little to say later on in this judgment on that subject.

As an alternative argument Mr Gordon submits that it might perhaps be argued that the new consent procedure amounts to a modification of the original project. Mr Gordon says that in that case the modification should be seen as a new project and the EA procedure should apply - see Dutch Dykes Tab 8, paragraph 35 and the words "projects must be understood as planned works of construction or other interventions on the environment not yet carried out and of which the fulfilment will entail modification of the status quo."

Mr Gordon submitted that on the construction of the Directive and in particular Articles 2.1 and 1.2, the Directive had direct effect in that a "Development Consent" required there to be an environmental assessment before there was any entitlement to proceed.

He submitted that an IDO which was defined in the Planning and Compensation Act as "an Old Mining Permission" had had effect in 1947 and that it no longer had effect in relation to dormant sites. It only had effect if there were two successive applications, the one for registration and the other to determine conditions. At that time full modern conditions were considered and only when they had been considered could there be a final determination under section 23(2). He submitted that the IDO then ceased to have effect.

I regret to say that I cannot accept that submission by Mr Gordon. As I have already pointed out the words in section 22(3) which refer to an IDO say that "that permission shall not authorise any such development to be carried out unless the permission has effect in accordance with subsection (2) above and the development is carried out after such an application is finally determined." Those words must mean that the old mining permission is that which is authorising a development to be carried out and that in turn must mean the IDO.

The same effect is achieved by the wording of sub-paragraph 4(a) of paragraph 1 of Schedule 2 where the words are "the permission authorises development". Again the same effect is achieved by the words in paragraph 2(2) of Schedule 2.

Thus it cannot be correct in my view to argue that the 1947 IDO is invalidated by the 1991 Act, or that section 22 causes the IDO to cease to have effect.

It is clear to me that such an argument cannot run and that it is the IDO which authorises under section 22(3)(b) the development that "is carried out after such an application if finally determined."

Mr Gordon's main submission remained that planning permission meant development consent. He submitted that his argument was reinforced by the Dutch Dykes opinion. Whatever was said about the IDO, he argued that we were dealing with a new modern planning permission and that was a new project. Further, there was here a modification of a planning permission and the IDO was subject to totally new conditions.

Mr Straker for the Respondent council argued, quoting the applicants' Form 86A, that the decision sought to be challenged was the decision to determine an application by Mr Hall for the "conditions for quarrying under an interim development order" without the matter having been subject to Environmental Assessment and in particular without Mr Hall having submitted an Environmental Statement.

He submitted that the applicants' whole case depended on the proposition that the Respondent council was either granting planning permission or alternatively was granting development consent entitling the developer to proceed with the project. That he pointed out was the case made out in paragraph 6 of the Form 86A in relation to planning permission and at paragraph 10 of the Form 86A in relation to development consent. Paragraph 6 of the Form 86A refers to regulation 4 of 1988 Regulations in contending that this was planning permission, and paragraph 10 of the same Form cites Article 1 of the Directive for the proposition that this was development consent.

Mr Straker argued that, however it was put, the proposition was plainly wrong as the language of the Form 86A itself expressly made clear, because the 86A says that quarrying was said to be done under an interim development order. That was, said Mr Straker, the correct position because the relevant section, section 22 of the 1991 Act, records the planning permission as having been granted under part 3 of the Town and Country Planning Act 1947.

The procedure under section 22 was one in which an old mining permission was registered and there was provided a sanction that non-registration removed the effectiveness of the permission. If, however, the permission was registered, then the permission remained valid but became subject to certain conditions. These conditions could not detract from the permission. Any such condition would have to be relevant to the permitted development. Mr Straker cited in support circular 11/95 'The use of conditions in planning permissions'. He also drew support from Pyx Granite v Ministry of Housing and Local Government (1958) QB 554 in which Lord Denning said that conditions must fairly and reasonably relate to the permitted development. He said at page 572:

"The principles to be applied are not, I think, in doubt. Although the planning authorities are given very wide powers to impose 'such conditions as they think fit,' nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest."

The permitted development in this case would relate to the development permitted by the IDO. Mr Straker says that reinforces the proposition that the development was permitted and remains permitted by the old mining permissions.

Mr Straker submitted that if one were to ask what is the decision of the competent authority which entitles the developer to proceed with the project, the only sensible answer would be "the permission granted under the 1947 Act the IDO."

He submits that, on any version, looking at European legislation or domestic legislation, the relevant development consent was granted in 1947.

He sets out the officious bystander test and argues that if Mr Hall were asked by an officious bystander on the subject of extracting minerals the question "To what do you point that allows you to do what you're doing?", the answer would inevitably be "The IDO granted in the 1940s."

He refers to the plan at page 86 which identifies the "IDO permission area" and the agenda for the respondent meeting on 6th June 1995 at page 55 where item 12 is "applications for determination of planning conditions for the Wensley Quarry's IDO permissions near Leyburn". He refers to the long report which starts on the following page and in particular to paragraph 1.7 at page 57 which says that "separate parts of this report deal with each applicant's submission and the associated conditions which are required to be 'necessary, relevant to planning, relevant to the development, enforceable, precise and reasonable in all other aspects'". Those, as he pointed out, are words taken straight from paragraph 7 of MPG 9 at page 113.

That paragraph to which I have not so far referred reads at the beginning:

"The conditions which may be imposed on an IDO permission may include any conditions which could 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, and may be imposed in addition to, or in substitution for, any conditions which attached to the original grant of permission."

Towards the end of the paragraph the words read:

"In all cases, conditions should be:

* necessary

* relevant to planning

* relevant to the development

* enforceable

* precise

* reasonable in all other respects."

MPG 9, it should be pointed out, was produced in order to give guidance in relation, as is said in paragraph 1, to the coming into force of the Planning and Compensation Act 1991 and in particular section 22. Paragraph 1 reads in its first sentence:

"With effect from September 25, 1991, the Planning and Compensation Act 1991 (the '1991 Act') introduced new provisions for dealing with permissions for the winning and working of minerals or the depositing of minerals waste, originally granted under Interim Development Orders (IDOs). These were permissions granted after July 21, 1943 and before July 1, 1948, which have been preserved by successive planning Acts as valid planning permissions in respect of development which had not been carried out by July 1, 1948."

Mr Straker also referred to the Inspector's recommendation at the conclusion of his report to the Secretary of State in July 1993 where he recommended that "the appeal be allowed and that an unconditional IDO permission be registered for the quarrying of lime stone from the whole of the areas designated on the plan which accompanied the application for registration made on 24th March 1992." That recommendation was accepted by the Secretary of State who allowed the appeal and directed that "an unconditional IDO permission be so registered".

Mr Straker also took me to paragraph 16 of the Inspector's report in relation to Wensley Quarry and the particular words that "the Quarry was reopened under the term of this agreement and remains operational to the present day". This is clearly from its context a reference not to Mr Hall's land but to area 1 and a little over half of area 2. Though Mr Straker makes submissions in relation to the continued working of that area I am satisfied that it is a different area from the one I am considering and that no proper factual base has been made to establish that any operational activity was going on, on the subject planned. I therefore reject that submission of Mr Straker.

I accept, however, his submission that, contrary to what was put by Mr Gordon, the 1991 Act was not enacted to implement the environmental directive. That had in fact been done by the 1988 Regulations. Mr Straker submits, and I accept, that the 1991 Act was enacted for the different purpose of dealing with these IDOs which were consents but which had not been properly recorded. It is thus, submits Mr Straker, entirely by chance that the position for which Mr Gordon contends has arisen without such a situation being apparent as the purpose of the legislation or conceived to be such by the Secretary of State. Mr Straker takes me to the two MPGs 8 and 9 and points out correctly that there is nothing in the MPGs about any requirements for an environmental assessment.

MPG 8 starts off in paragraph 1 with the words:

"The Planning and Compensation Act 1991 (the '1991 Act') received Royal Assent on July 25, 1991. With effect from September 25, 1991, the provisions of section 22 and Schedule 2 introduce new procedures for dealing with permissions for the winning and working of minerals or the depositing of minerals waste, originally granted under Interim Development Orders (IDOs)."

Paragraph 6 of MPG 8 dealing with the issues reads:

"There are essentially four separate problems associated with permissions granted under IDOs:

- Unlike post 1947 Act permissions,

there was no requirement to register

them, so records are sparse and such

as there are may be imprecise. This

means that planning authorities (and

other interested parties, e.g. house

purchasers) do not know where some

permissions exist and where they do

know, the details they hold may

differ from those held by the person

or persons with the benefit of the

permission.

- Because they are not registered,

long dormant workings can be

reactivated without warning.

- Existing workings may be subject to

few, if any, conditions, governing

the operation of the quarry or its

restoration.

- There can be large unworked

extensions to existing workings

covered by the permissions, which if

worked may have significant adverse

impacts on the environment and

amenity.

7. Because of the absence of accurate records the number and extent of IDO permissions which are valid today is not known. However, it is believed that there could be in the order of 1,000 in England and Wales. The Government considered this represented a considerable potential problem, and therefore decided to take measures in the Planning and Compensation Act 1991, to ensure that these old permissions are brought within the modern planning system."

I consider that these words amply bear out the submission made by Mr Straker to which I have recently referred.

The only other passage I need refer to from MPG 8 is paragraph 27 where it is said in relation to the MPAs:

"If they decide on the evidence that there is a valid permission, they must then ascertain the area of land to which the permission relates, and the conditions, if any, to which the permission is subject. Determinations must be made on the basis of the evidence, not on planning merits. It will be for the MPA, in the first instance, to determine whether they require any further information to establish the facts of the case, and from whom."

Mr Straker asks and answers two questions. He asks: "On what does the Directive seek to bite?" and gives as the answer: "Post 1988 consents". He then asked: "What is such a consent?" and gives the answer: "The decision which enables the activity to proceed." The Directive uses the language of entitlement and entitlement, says Mr Straker, comes when an authority says "yes, you may do that" which in this case was in 1947.

In contrast Mr Straker points out that the 1988 Regulations are concerned in Regulation 4 with the "grant" of planning permission. The application referred to under Schedules 1 and 2 refer to "an application for planning permission" as does Regulation 10.

Mr Straker submits that in section 22(2) and (3) Parliament was drawing a distinction between sites where work was going on so as not to stop an individual from doing that work while these matters were put into place, and, on the other hand, sites where there had been no work carried out to any substantial extent in the two years up to 1st May 1991, in which case the owner could hold fire while going through this procedure. Mr Straker submits that whatever happens, provided the procedure is gone through, in either case the result is the same whether under section 22(2) or section 22(3).

He then referred me to a number of sections of the Town and Country Planning Act 1990, beginning with section 70 which enacted that:

"Where an application is made to a local planning authority for planning permission-

(a) subject to Sections 91 and 92

they may grant planning permission

either unconditionally or subject to

such conditions which they think

fit..."

He submitted that it was common for conditions to be imposed forbidding the doing of an act until an event had happened. He submitted that the entitlement to develop came from the permission and not from the meeting of the condition subsequently.

He took me to section 72 of the Act dealing with the conditional grant of planning permission, to section 97 of the Act dealing with the power to revoke or modify planning permission, and to section 92 dealing with outline planning permission which is accompanied by the reservation for subsequent approval of matters not particularised in the application, known as "reserved matters".

Mr Straker submitted that in all these cases it was the permission which operated as the consent. He referred to the case of Medina Borough Council v Proberun Ltd 61 PCR 77 at pages 83, 84 and 85. He submitted, rightly in my view, that in such cases it was the consent which enabled the individual to proceed. He posed the question: "What do the Town and Country Planning Regulations reveal as to consent which enables the developer to proceed?" He said that the answer was the permission even if it was subject to conditions, those conditions might be either trivial, as for instance a question of no Sunday opening, or could be vital in environmental terms, such as landscaping or siting.

As to how the matter is seen by the Secretary of State Mr Straker took me again to MPG 8 which was issued in September 1991 as we have seen coincident with the coming into force of section 22 in Schedule 2. He also took me to MPG 9 and in particular paragraph 7, to which I have recently referred, saying that that language was not apt if what was happening there was the granting of development consent itself. I find that argument to be formidable.

Dealing with Mr Gordon's arguments on direct effect Mr Straker pointed out that there was at present no decision of the European Court of Justice in the Dutch Dykes case but only what he accepted was an authoritative opinion from the Advocate General.

He said, however, that the decision of Mr Justice Turner in Wychavon District Council v Secretary of State and Velcourt Limited [1994] ELR 239 is later and more authoritative and he sought to adopt the decision of Mr Justice Turner in that case in which the learned judge held that the directive was "incapable of having direct effect."

Mr Straker submitted finally that the fact that a permission was conditional did not mean that what gave validity to its operation was the condition. It is the consent which gives validity to the operation, he submitted, not the condition.

I turn now to consider my findings. I am satisfied that Mr Straker's main submission is well founded. The consent here and the entitlement stem from the 1947 Interim Development Order under Part III of the Town and Country Planning Act 1947. It is that "old mining permission" from which the consent and entitlement to quarry Mr Hall's land is obtained. Section 22 of the Planning and Compensation Act 1991 clearly recognises that in its express terms. It follows that the Respondent council 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 Planning and Compensation Act 1991 and were following the guidance set out in the co-existent planning guidance of 1991 to be found in MPG 8 and MPG 9.

Guidance to be found therein included that at paragraphs 1, 6 and 27 of MPG 8 and 2, 7 and 10 of MPG 9. There was no reference at all to the requirements of any environmental statement or environmental assessment in those MPGs.

I find that what the Respondent council was doing on 6th 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 by section 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.

As to European law I remind myself of the particular duty on domestic courts in relation to European law. This is conveniently stated in Officier Van Justitie v Kolpinghis Nijmegen BV, case 89/86 (1989) CMLR 18:

"...The Member State's obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under Article 5 of the Treaty to take all of the appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all Member States including, for matters within their jurisdiction, the courts. It follows that in applying the national law specifically introduced in order to implement the Directive, national courts are required to interpret their national law in the light of the wording and purpose of the Directive in order to achieve the result referred to in Article 5 of the Treaty.

(13) However the obligation on the national court to refer to the content of the Directive when interpreting the relevant rules of the national law is limited by the general principles of law which form part of the Community law and in particular the principles of legal certainty and non-retroactivity."

I also remind myself of the Marleasing principle and I remind myself of what Mr Justice Turner held in the Wychavon District Council case, that the Directive was incapable of having direct effect.

I bear in mind Mr Gordon's submission that Mr Justice Turner in Wychavon does not seem to have been referred to Twyford Parish Council v Secretary of State (1992) 1 ENVLR 37 where the court accepted that the EA Directive may have direct effect for some projects. However, Mr Justice McCullough in the Twyford case found at page 46 that the submission on the Directive failed and was from then on only considering the consequences which "would have followed had I taken the opposite view." It is clear therefore that what came after his conclusion was clearly obiter and went on only on the basis of an assumption that the Directive applied. Again Mr Gordon referred to Kingcardine v Deeside District Council [1993] ENVLR 151. However, it is clear that in that case the Court of Session held that direct effect could not be attributed to article 4.2 of the Directive. Mr Gordon submits that the point was not fully argued before the Court of Session nor was it appealed and sought to pray in aid informal and unspecified statements of the European Commission to whom the matter proceeded by way of formal complaint. However, the decision of the Court of Session remains and the decision was that the Directive did not have direct effect.

I am satisfied that Mr Justice Turner in the Wychavon case was entirely right when he came to his conclusion on the question of direct effect of the Directive. He said at page 248:

"The submission of the applicants was that since Article 12 of the directive, which is concerned with the date of implementation, was expressed in clear and unequivocal terms the requirements of unconditionality and certainty was readily fulfilled. The submission for the first respondent was that it was necessary to examine the substantive provisions of the directive and give consideration to the presence or absence of conditionality and certainty within them before reaching a decision whether or not the directive was, in legal theory, capable of being given direct effect. It is unnecessary for me to analyse each article in the directive in turn in order to determine whether or not it is unconditional or uncertain. It will suffice if in respect of any Article which offends against the principle it is identified. Articles 1(1), 2(2) and (3), 3, 4(2), 5(1) and (2), and 6(1) and (3) all, in my judgment, offend the principle. In the result, I hold that the directive is incapable of having direct effect."

I am accordingly satisfied that the Directive does not have direct effect and because I am so satisfied it is clear to me that this is not a matter that should be referred to the European Court of Justice for a preliminary ruling.

Accordingly there is no need for me further to consider the draft question which Mr Gordon put before me.

In view of my findings there is also no further need for me to consider Mr Straker's alternative submission as to the applicants' alternate remedy by way of the appeal route to the Secretary of State. All I need to say is that had I been disposed to find for Mr Gordon on his main argument I think it unlikely that in my discretion I would have refused him relief on the grounds of an alternative remedy. The reason for that is that it seemed provisionally to me that the fact that it was not certain that the Applicants would be permitted to argue their case before the Inspector was an important factor in that consideration. Be that as it may, I make no decision on that matter.

It follows from my findings that this application must be dismissed.

MR STRAKER: In those circumstances I ask for a formal order dismissing the application for judicial review with costs in favour of the Respondent council.

MR GORDON: My Lord, I cannot resist the order and I cannot resist the application for costs, so I do not.

MR JUSTICE HIDDEN: I am grateful. I make those orders accordingly.

MR GORDON: My Lord, I have a further application----

MR JUSTICE HIDDEN: Yes.

MR GORDON: ----which is for leave to appeal to the Court of Appeal. My Lord may I unusually hand your Lordship an authority. I am afraid I will have to share a copy with Mr Straker. This is a case about VAT and on the face of it very far removed from this case. It is the unreported decision of the Court of Appeal on 25th June 1991 and the name of the case is R v HM Customs and Excise ex parte Davies Products (Liverpool) Limited. I do not know if your Lordship has had a copy handed up.

MR JUSTICE HIDDEN: I have, yes.

MR GORDON: If I can first of all ask you to turn to page 2 letter A just to see what it was in essence about. It was a renewed application for leave to apply for judicial review. Both the single judge on paper and the judge hearing it on an oral application refused leave. If you would just look down the page to letters G and H your Lordship will see the European flavour of it, a regulation requiring payment of anti-dumping duty and Council Regulations are cited. My Lord, when the case reached the Court of Appeal, the Court of Appeal did give leave to move, but made observations at page 8 between letters F to H which, in my respectful submission, are possibly material. In the judgment Lord Justice Woolf said this:

"Furthermore, where there is a case which has a European element, which conceivably could require the parties to consider a reference to Europe, it would be wrong for the High Court to refuse the applicants the opportunity of obtaining a reference, if that is something to which they are entitled, by failing to give them leave to apply for judicial review. That again is a matter which I would regard as a material consideration as to whether leave should be granted in this case."

My Lord, moving on from that case and those observations, of course prior to, I think it was October 1994, there was no requirement of leave from a substantive hearing to the Court of Appeal in judicial review cases. What appears to have happened is there was a decision taken to introduce such a requirement primarily to get rid of the immigration backlog sitting in the Court of Appeal. What in fact happened was the only class of case for which leave is not required is an immigration case. My Lord, the wild birds case which is in the bundle of authorities before your Lordship. The General's opinion is at tab 9.

MR JUSTICE HIDDEN: The Lappel Bank case?

MR GORDON: Yes, Lappel Bank. I can tell your Lordship that the full European Court of Justice did deliver judgment in that case upholding as is more often the case than not the opinion of the Advocate General. It is right to say that although I was not able to hand up Davies Products at the original hearing in front of the divisional court, my Lord that was a case where we were making submissions based on European law. They were rejected by the divisional court. I sought leave to appeal which was refused. I went to the Court of Appeal and as a matter really of adminstrative convenience they gave leave because the appeal was listed on the same day. Two of their Lordships found against me and one for me. We went to the House of Lords with leave. The House of Lords found the matter unclear and the European Court decided the case in our favour. All this is largely anecdotal.

MR JUSTICE HIDDEN: It is very interesting.

MR GORDON: The point I seek to raise before your Lordship is this. This is a case which has a strong European element - that is to say that if the principal submission were found to be well founded then there would be three important points. First of all the inter relationship between Article 1.2 of the Directive which was at page 2, tab 1, of the authorities bundle - that is to say the definition of development consent - and the terms of the provisions of section 22(3) of the Planning and Compensation Act which is at page 90, tab 3, of the authorities bundle. Really it comes to this, very simply, when one sees in the European Directive the reference to development consent being an entitlement to proceed with the project, does that extend to, at page 90, section 22(3), the situation where a permission itself is held statutorily incapable of authorising development without other steps. That is the short point and was the point before your Lordship. My Lord that is a European point. I am going to come back to the question of direct effect in a moment but that is purely a European point.

The second European point of course is, as your Lordship analysed, the effect of the new procedure on the IDO. In other words is there a straddling? Again that is a European point.

Finally, the modification of the original project, is there such a modification, entirely depended upon EC jurisprudence.

All these submissions, all these arguments, founder of course or may founder if the Directive does not have direct effect. But the really critical point here is this. The Advocate General in Dutch Dykes has held these very articles do have direct effect. I do appreciate your Lordship's conclusions as a matter of national jurisprudence. The point is the European court will very shortly deliver judgment in Dutch Dykes, and it is likely, and purely this is a matter of what usually happens, it is not inevitable but likely to follow the Advocate General. If it does, on past performance, do that, my Lord, there is clearly a most critical point here because unless this matter goes to appeal your Lordship's judgment which is directed on these articles will be in the Tull(?) sense binding on other divisional courts. My Lord, if the directive does have direct effect there are clearly points of fundamental importance on each of these issues and of course should the European Court not pronounce on the matter, the very question of whether the Directive has direct effect is a matter of European jurisprudence. It is a question which itself, in my respectful submission, is worthy, or possibly worthy, of a reference. So going back to the Davies Products case, really my submission is that there is a point here, there are several points, all of which could conceivably require a reference just as the Court of Appeal said the High Court should not refuse the applicants that opportunity. My Lord I submit that----

MR JUSTICE HIDDEN: That was on the leave stage for moving.

MR GORDON: It was. All I am suggesting is that there is not really a lot of analytic difference where there is a European point of law concerned and it is illustrated by a case such as Lappel Bank. My Lord, I appreciate the thrust of your Lordship's judgment on each of the findings that your Lordship has made, but all of those points are themselves points which could conceivably require a reference in the sense of a different court taking a different view of their merit. It is on that basis and by analagy with the Davies Products case and praying in aid, as I do, continually seek to do, the unfortunate experience in Lappel Bank where the European Court was unhappy about what had happened in domestic courts. I simply invite your Lordship to grant leave to appeal.

MR JUSTICE HIDDEN: When is the Dutch Dykes decision expected?

MR GORDON: I will take instructions on that, my Lord. My Lord, I am told shortly. My instructing solicitor did enquire a few weeks ago and was told there was no fixed date, but it is obviously going to happen. It has been pending for a long time now, so quite shortly.

MR JUSTICE HIDDEN: There is no certainty at all as to date?

MR GORDON: No certainty, my Lord.

MR GORDON: My Lord with the Lappel Bank case the Advocate General gave his opinion in March and we had the full judgment in July. I am told that the Advocate General gave his opinion on the same day in the Dutch Dykes case so just as with a normal list in the Crown Office one would expect it to come fairly soon.

MR JUSTICE HIDDEN: Mr Straker?

MR STRAKER: My Lord, I am afraid I cannot help as to whether there is a normal list in the European Court either. My Lord, can I deal with the matter in this way. First on the severely practical side of things and second on the legal matters which my learned friend has canvassed.

As to the severely practical side of things, there is, of course, only a limited number of interim development orders extant. I recognise of course that the government attached importance to them but that limited number must be even more limited for those which might fall within the matters affected by this case in your Lordships' judgment. Secondly, on this severely practical side of things, there remains, and I put it as low as I may so as to count against myself, there remains at the very least the opportunity for matters bearing upon what lies at the heart of all this, the environment and the particular locality, to be canvassed before the enquiry which has to take place in accordance with the mechanism which has been set in motion by Mr Hall with regards to the question of what conditions should or should not be imposed. So there are two severely practical reasons which might militate against the grant of leave because they would both tend to suggest that this is not from a practical point of view so significant as some other cases might be.

My Lord, I draw a line there and move to the legal matters which my learned friend touched upon. First of all so far as ex parte Davies is concerned, as your Lordship has mentioned that was an application for leave to move for judicial review where of course the test is whether or not there is an arguable case. Here one is looking at the matter in a different context and I would respectfully say that the significance of that must therefore be limited. Secondly, and in any event, what that indicated was, via the statement of Lord Justice Woolf (as he then was) that the opportunity ought to be given, that opportunity has of course been given in this case via the grant of leave made by Mr Justice Owen and considered by your Lordship in the judgment just delivered. Thirdly, of course, your Lordship thought matters sufficiently clear to be able to give judgment in the terms which your Lordship employed.

My Lord, so far as the other matters are concerned which my learned friend touched on, the three points indicating matters of significance or potential significance in European terms. As to the first two, the point about Article 1(2) and the 1991 legislation and the "straddling" point, I would respectfully say that your Lordship was able to deal with those matters in your Lordship's judgment and the matter stands clear in connection with those in the light of your Lordship's judgment. Thirdly, in respect of the Dutch Dykes case and the potential significance of that, your Lordship will of course remember that whatever is said and whenever it is said by the European Court, that was a matter which, as one sees from the translation of the conclusions of the Advocate General behind tab 8, was very different factually from the circumstances which present themselves here, so that, if your Lordship has that document, at page 7 there is a reference at paragraph 10 to what was being done.

MR JUSTICE HIDDEN: Construction of a new Dyke?

MR STRAKER: My Lord, yes, "a new Dyke to replace" and I do not need to read on.

At paragraph 32, page 15, the second sentence - the first sentence refers to modification of works not being within the application of the Directive, but then:

"Modifications may however be of such importance that they constitute, in reality, a new project. It is important to verify this point each time."

Further at page 20-21, paragraph 42:

"... good reason to reply to the second question in the sense that... all types of projected works concerning dikes bordering a waterway, that it concerns the construction of a new dike, the resiting of an existing dike, the reinforcement and/or enlargement of an existing dike, the replacement of a dike by the construction of a new dike at the same place, this not being more substantial or larger than the old dike, or to a combination of several of these works."

My Lord it is very different in my respectful submission as to what was happening there and underlying the facts for that particular case, and can be contrasted with the situation here so that on the third matter touched upon by my learned friend as potentially of European significance, if I may put it in that way, and I would say not so for the reasons that your Lordship gave in your Lordship's judgment coupled with the fact that factually what underlies the Dutch Dykes case is very different from this case. My Lord, that is all I would wish to say on the application for leave.

MR JUSTICE HIDDEN: Thank you Mr Straker. Mr Gordon?

MR GORDON: My Lord, the first point Mr Straker makes in this case is of very limited effect because there are only a limited number of extant IDOs. That submission entirely misses, if I may respectfulfully submit to your Lordship, the effect of the Environment Act 1995 which rather like, in fact identical to, the Planning and Compensation Act introduces an identical procedure for the renewal of planning consent in relation to permissions granted between 1948 and 1981. So that a huge area of principle is affected by your Lordship's judgment.

The second point of course is that the concept of direct effect and whether this Directive and this Article has direct effect goes well beyond the IDOs in the 1991 Act and other permissions in the 1995 Act. So it is even wider, it goes to the whole of the question as to the need for environmental assessment.

My Lord, the third point, although he made it last, that Mr Straker makes, is to refer your Lordship to what he contends to be a different underlying factual basis of Dutch Dykes. My Lord may I just briefly ask your Lordship to look at a question and answer in Dutch Dykes. It is in the authorities bundle at tab 8. First of all the question which the court asked is at page 30, at paragraph 63:

"The fourth question of the referral court in fact covers two different questions: the referral court wishes to know if Article 2, Paragraph 1, of the Directive has a direct effect..."

That is a general question of principle. Then that question is answered at page 34, in paragraph 74:

"In the light of the preceding considerations we are of the opinion that Article 2, Paragraph 1, of the Directive has a direct effect."

My Lord, at page 38 the conclusions of the Advocate General at conclusion (4):

"Article 2, Paragraph 1 of Council Directive... has a direct effect and a national court, having the power, according to national law, to apply officially rules of law which have not been invoked, must apply this provision even if it has not been invoked by the party interested in its application."

So those are general questions of principle, quite freestanding from the factual matrix of that case. There is no question of a matter of European jurisprudence of what I call relative direct effect.

My Lord the penultimate point made by Mr Straker is that the inquiry is an alternative remedy to appeal - that is what it comes to - but your Lordship has already found against me exhypothesi on that particular point and it cannot now come back in as a criterion, in my submission, for refusing leave to appeal.

The last point that I would make is on the Davies case. Of course I do not say and do not seek to submit to your Lordship that leave to apply for judicial review is the same as leave to appeal. What I do submit is that the underlying ratio of what Lord Justice Woolf is saying in that case is that it is unsatisfactory for the High Court to block off a conceivable route to a reference and that flows from Article 4 of the Treaty which is that Member States, which include National Courts, have to give full effect to community law all in their power to give full effect.

My Lord it is for all of those reasons that I do submit that this is not a case which the legislature in the Supreme Court Act was seeking to block off to the Court of Appeal. This is a case, if there ever was a case, where there is genuine legal merit. For those reasons I do seek leave to appeal.

MR JUSTICE HIDDEN: Yes. You may have leave, Mr Gordon.