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
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

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

iJobs Job Widget
iJobs People

Geography Teacher

£85 - £140 per day: Randstad Education Cheshire: We require a teacher of Geogr...

HR Assistant / Human Resources Assistant

£Neg + Excellent Benefits: Guru Careers: An HR Assistant / Human Resources Ass...

Talent Community Coordinator

£Neg + Excellent Benefits: Guru Careers: A Talent Community Coordinator is nee...

Business Support - Banking - Halifax - £250 pd

£150 - £250 per day: Orgtel: HR Analyst - Banking - HR - Halifax - £150 - £250...

Day In a Page

Finding the names for America’s shame: What happens to the immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert?

Finding the names for America’s shame

The immigrants crossing the US-Mexico border without documents who never make it past the Arizona desert
Backhanders, bribery and abuses of power have soared in China as economy surges

Bribery and abuses of power soar in China

The bribery is fuelled by the surge in China's economy but the rules of corruption are subtle and unspoken, finds Evan Osnos, as he learns the dark arts from a master
Commonwealth Games 2014: Highland terriers stole the show at the opening ceremony

Highland terriers steal the show at opening ceremony

Gillian Orr explores why a dog loved by film stars and presidents is finally having its day
German art world rocked as artists use renowned fat sculpture to distil schnapps

Brewing the fat from artwork angers widow of sculptor

Part of Joseph Beuys' 1982 sculpture 'Fettecke' used to distil schnapps
BBC's The Secret History of Our Streets reveals a fascinating window into Britain's past

BBC takes viewers back down memory lane

The Secret History of Our Streets, which returns with three films looking at Scottish streets, is the inverse of Benefits Street - delivering warmth instead of cynicism
Joe, film review: Nicolas Cage delivers an astonishing performance in low budget drama

Nicolas Cage shines in low-budget drama Joe

Cage plays an ex-con in David Gordon Green's independent drama, which has been adapted from a novel by Larry Brown
How to make your own gourmet ice lollies, granitas, slushy cocktails and frozen yoghurt

Make your own ice lollies and frozen yoghurt

Think outside the cool box for this summer's tempting frozen treats
Ford Fiesta is UK's most popular car of all-time, with sales topping 4.1 million since 1976

Fiesta is UK's most popular car of all-time

Sales have topped 4.1 million since 1976. To celebrate this milestone, four Independent writers recall their Fiestas with pride
10 best reed diffusers

Heaven scent: 10 best reed diffusers

Keep your rooms smelling summery and fresh with one of these subtle but distinctive home fragrances that’ll last you months
Commonwealth Games 2014: Female boxers set to compete for first time

Female boxers set to compete at Commonwealth Games for first time

There’s no favourites and with no headguards anything could happen
Five things we’ve learned so far about Manchester United under Louis van Gaal

Five things we’ve learned so far about United under Van Gaal

It’s impossible to avoid the impression that the Dutch manager is playing to the gallery a little
Screwing your way to the top? Good for Lana Del Rey for helping kill that myth

Screwing your way to the top?

Good for Lana Del Rey for helping kill that myth, says Grace Dent
Will the young Britons fighting in Syria be allowed to return home and resume their lives?

Will Britons fighting in Syria be able to resume their lives?

Tony Blair's Terrorism Act 2006 has made it an offence to take part in military action abroad with a "political, ideological, religious or racial motive"
Beyoncé poses as Rosie the Riveter, the wartime poster girl who became a feminist pin-up

Beyoncé poses as Rosie the Riveter

The wartime poster girl became the ultimate American symbol of female empowerment
The quest to find the perfect pair of earphones: Are custom, 3D printed earbuds the solution?

The quest to find the perfect pair of earphones

Earphones don't fit properly, offer mediocre audio quality and can even be painful. So the quest to design the perfect pair is music to Seth Stevenson's ears