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IN
THE SUPREME COURT OF JUDICATURE
QBCOF
96/1645/D
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM QUEEN'S BENCH DIVISION
(CROWN
OFFICE
)
Royal
Courts of Justice
The
Strand
London
WC2
Tuesday
27th January, 1998
B
e f o r e:
LORD
JUSTICE EVANS
LORD
JUSTICE HOBHOUSE
LORD
JUSTICE PILL
-
- - - - -
R
E G I N A
-
v -
NORTH
YORKSHIRE COUNTY COUNCIL
Appellant
EX
PARTE MARILYN BROWN AND LESLIE CARTWRIGHT
Respondent
-
- - - - -
(Handed
down Transcript of Smith Bernal Reporting Ltd
180
Fleet Street, London EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
MR
W BIRTLES
(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
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
Tuesday
27th January, 1998
JUDGMENT
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.”
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
[1958] 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
[1965] 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
[1996] 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.
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