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.