Tuesday Law Report: Quarrying conditions are 'development consent'

16 February 1999 R v North Yorkshire County Council, ex p Brown and another House of Lords (Lord Nicholls of Birkenhead, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Hoffmann) 11 February 1999

THE DETERMINATION of conditions to be imposed on an old mining permission pursuant to the Planning and Compensation Act 1991 was the grant of "development consent" within the meaning of Council Directive (EEC) 85/337.

The House of Lords dismissed the council's appeal against the decision of the Court of Appeal that its determination of the conditions to be imposed on the operation of a quarry, in respect of which an old mining permission had been continued in force by section 77 of the Town and Country Planning Act 1947, should be quashed.

In 1995 the council, as mineral planning authority, determined conditions upon the operation of the quarry pursuant to section 22 of and Schedule 2 to the Planning and Compensation Act 1991.

The 1991 Act required the owner of land with the benefit of an old mining permission to apply to the local mineral planning authority for its registration, in default of which the permission would cease to have effect. Once the application had been granted, conditions for its operation had to be determined, after which the old permission would take effect as if it had been granted subject to those conditions.

The applicants, who were householders in a nearby village, applied for judicial review to quash the council's determination on the ground that, prior to imposing the conditions, it had not undertaken an environmental impact assessment in accordance with Council Directive (EEC) 337/1985, which required that such an assessment should be undertaken before the grant of "development consent" for specified kinds of project. The council contended that the imposition of conditions was not a "development consent".

Richard Gordon QC and Will- iam Birtles (Richard Buxton, Cambridge) for the applicants; Timothy Straker QC and Philip Kolvin (Rees & Freres) for the council.

Lord Hoffmann said that Article 1.2 of the Directive defined "development consent" as "the decision of the competent authority or authorities which entitles the developer to proceed with the project". Article 4 distinguished between certain types of major project, listed in Annex I, in respect of which an assessment was mandatory, and other kinds of project, listed in Annex II, in respect of which an assessment had to be undertaken "where Member States consider that their characteristics so require".

Quarrying fell within Annex II, and the United Kingdom was thus required to establish criteria for determining whether a grant of "development consent" for quarrying should require an assessment. The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 were intended to establish such criteria, but applied only to a grant of planning permission.

In the case of an old mining permission, although the source of the developer's right to proceed was and remained the planning permission of 1947, even after conditions had been imposed under the 1991 Act, the developer nevertheless could not proceed to implement the permission unless the planning authority had determined the appropriate conditions. That was sufficient to bring the determination within the European concept of a "development consent".

The Directive did not apply to decisions which involved merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, had already been given. The purpose of the procedure created by the 1991 Act, however, was to give the mineral planning authority a power to assess the likely environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all.

Suggested Topics
Start your day with The Independent, sign up for daily news emails
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: Human Resources Manager

£28000 - £35000 per annum + Benefits: Ashdown Group: A successful organisation...

Recruitment Genius: Internal Recruiter - Manufacturing

£20000 - £30000 per annum: Recruitment Genius: An Internal Recruiter (manufact...

Ashdown Group: HR Manager (CIPD) - Barking / East Ham - £50-55K

£50000 - £55000 per annum + 25 days holidays & benefits: Ashdown Group: HR Man...

Recruitment Genius: Operations / Project Manager

£40000 - £48000 per annum: Recruitment Genius: This software company specialis...

Day In a Page

Refugee crisis: David Cameron lowered the flag for the dead king of Saudi Arabia - will he do the same honour for little Aylan Kurdi?

Cameron lowered the flag for the dead king of Saudi Arabia...

But will he do the same honour for little Aylan Kurdi, asks Robert Fisk
Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Our leaders lack courage in this refugee crisis. We are shamed by our European neighbours

Humanity must be at the heart of politics, says Jeremy Corbyn
Joe Biden's 'tease tour': Could the US Vice-President be testing the water for a presidential run?

Joe Biden's 'tease tour'

Could the US Vice-President be testing the water for a presidential run?
Britain's 24-hour culture: With the 'leisured society' a distant dream we're working longer and less regular hours than ever

Britain's 24-hour culture

With the 'leisured society' a distant dream we're working longer and less regular hours than ever
Diplomacy board game: Treachery is the way to win - which makes it just like the real thing

The addictive nature of Diplomacy

Bullying, betrayal, aggression – it may be just a board game, but the family that plays Diplomacy may never look at each other in the same way again
Lady Chatterley's Lover: Racy underwear for fans of DH Lawrence's equally racy tome

Fashion: Ooh, Lady Chatterley!

Take inspiration from DH Lawrence's racy tome with equally racy underwear
8 best children's clocks

Tick-tock: 8 best children's clocks

Whether you’re teaching them to tell the time or putting the finishing touches to a nursery, there’s a ticker for that
Charlie Austin: Queens Park Rangers striker says ‘If the move is not right, I’m not going’

Charlie Austin: ‘If the move is not right, I’m not going’

After hitting 18 goals in the Premier League last season, the QPR striker was the great non-deal of transfer deadline day. But he says he'd preferred another shot at promotion
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Who is Oliver Bonas and how has he captured middle-class hearts?

Who is Oliver Bonas?

It's the first high-street store to pay its staff the living wage, and it saw out the recession in style
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
60 years of Scalextric: Model cars are now stuffed with as much tech as real ones

60 years of Scalextric

Model cars are now stuffed with as much tech as real ones