Condron v Merthyr Tydfil County Borough Council
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE ARDEN,Lord Justice Wilson,Mr Justice Henderson |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] EWCA Civ 534 |
| Docket Number | Case No: C1/2009/0950 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2010 |
[2010] EWCA Civ 534
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Beatson J
Before: Lady Justice Arden
Lord Justice Wilson
and
Mr Justice Henderson
Case No: C1/2009/0950
Lower Court No. CO/10241/2008
Mr David Wolfe (instructed by Richard Buxton Environmental & Public Law) for the Appellant
Mr Geoffrey Stephenson (instructed by Merthyr Tydfil County Borough Council and Caerphilly County Borough Council) for the 1st and 2nd Respondents
Mr Rhodri Price Lewis QC by Messrs DLA Piper for the Interested Party
Hearing date: 18 January 2010
LADY JUSTICE ARDEN:
This application for permission to appeal is brought by Mrs Elizabeth Condron from the order of Beatson J, dated 1 May 2009, refusing permission for Mrs Condron to apply for judicial review of four decisions to grant planning approval for the development, refurbishment and continued use of Cwmbargoed Disposal Point (“CDP”) near Merthyr Tydfil, South Wales. This application was listed with the appeal to follow if permission were granted. Mrs Condron is represented by Mr David Wolfe. As explained below, both the first and second respondents to the appeal are planning authorities for the CDP as it falls as to 80% within the area of Caerphilly CBC and as to 20% within the area of Merthyr Tydfil CBC. Both planning authorities are represented by Mr Geoffrey Stephenson. The owner of the site is Miller Argent (South Wales) Ltd (“Miller Argent”), which is an interested party in these proceedings and the third respondent to this appeal. It is represented by Mr Rhodri Price Lewis QC.
The principal issues arising in this application are whether paragraphs 2(e) and 10(b) of schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (“the Regulations”), which implement the Environmental Assessment Directive (Directive 85/337/EEC) (“the EIA Directive”), apply to the permissions which she seeks to challenge. The EIA Directive was later amended by Directives 97/11/EC and 2003/35/EEC, and when I refer to the EIA Directive, I refer to that Directive as so amended. There is also an issue as to the effect of delay in commencing these proceedings.
BACKGROUND
The development site
CDP is 23.44 hectares in area. It is about 1km north of Fochriw. Part of its eastern boundary adjoins a land reclamation site known as Ffos y Fran (“FF”). Permission was first given for the CDP in 1957. Its purpose was the receiving, processing and exporting of coal from the South Wales Coalfield. It has been in use since permission was given.
The National Assembly for Wales gave permission for the land reclamation scheme at FF in 2005 following a public inquiry. The objective of the FF scheme is to return land described by Mr Stephenson as “derelict, unsafe and unsightly” to community use. Open cast mining is permitted to continue there until 2022, but the site must be restored by 2024.
Mrs Condron submits that she raises matters of general public importance. The permissions relate to the processing of coal from FF, which is adjacent. FF is the largest open cast coal mining operation in the United Kingdom. FF is contentious, not least because the site boundary is within 36 m of people's homes. Mrs Condron lives within 500 m from the opencast site and suffers noise and dust pollution from the operation. She submits that granting the permissions in issue in these proceedings without proper assessment may well be exacerbating existing environmental problems. Effective environmental assessment is therefore essential. Some of these points are contested by the interested party, which contends that the CDP is not in a sensitive area, that the residents live 650m away from the site boundary and that Mrs Condron lives over 3 km away.
Miller Argent points out that no statutory bodies objected to the grant of planning permission, and that there is no conflict with the development plan. The CDP has been used for receiving processing storing and the onward transport of coal for over 50 years.
We are not required to consider whether the proposals have a substantial effect on the environment, but whether there is an arguable case as a matter of law that the planning authorities were required to consider the need for an environmental assessment in accordance with the EIA Directive before each of the permissions, which Mrs Condron seeks to have quashed, was granted.
The planning permissions challenged by Mrs Condron
The object of the four permissions is to enable modern facilities to be built at the CDP. Taking each in turn:
(1) 070250/FULL (12 July 2007) (Caerphilly CBC): this granted permission for ancillary facilities in connection with mineral extraction operations at FF. It included office accommodation, staff welfare facilities, a gatehouse, a visitor/training centre, car parking, security facilities, drainage and other ancillary operations at the CDP. This permission was expressed to expire on 1 December 2010.
(2) 07/0251/FULL (12 July 2007) (Caerphilly CBC): this granted permission for the extension and refurbishment of existing operational buildings and plant at the CDP. This permission was also expressed to expire on 1 December 2010.
(3) 08/0231/FULL (19 June 2008) (Caerphilly CBC): this was granted for operational development and was expressed to expire on 31 December 2024.
( 4) P/08/0091(3 September 2008) (Merthyr Tydfil CBC): this also was granted for operational development and was also expressed to expire on 31 December 2024.
Mr Stephenson informed the court that the planning officers in each borough considered whether an environmental impact assessment (“ EA”) was required in respect of all four of the applications and that they concluded independently that the Regulations do not apply and that therefore no EA was required. The evidence in the appeal bundle shows that this was done in relation to 07/0250, 07/0251 and P/08/0091 at least.
The permissions were granted subject to conditions which have now been fulfilled. However it is common ground that six conditions in permissions (1) to (3) had not been satisfied as at the commencement of these proceedings.
THE LEGISLATIVE FRAMEWORK
The EIA Directive
The EIA Directive embodies and promotes far-reaching and highly significant aims. It is a “fundamental instrument” of the European Union's environmental policy: R. (Barker) v London Borough of Bromley [2007] 1 AC 470 at [3] per Lord Hope. The Court of Justice of the European Communities (now the Court of Justice of the European Union) (“the Court of Justice”) has held that “[t]he wording of the [EIA] Directive indicates that it has a wide scope and a broad purpose” (see, for example Kraaijeveld v Gedeputeerde Staten van Zuid Holland [1996] ECR 1-5403 at [31]).
The EIA Directive specifies the cases in which an EA must be required by a planning authority before it gives “development consent”, defined in Article 1(2) of the EIA Directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. Article 2(1) provides:
“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.”
It is now clear that, where outline consent is given and conditions are inserted which must be satisfied before the development can proceed, the development consent for the purposes of the EIA Directive is not finally given until all the conditions are satisfied: see R (Barker) v London Borough of Bromley [2007] 1 AC 470. Accordingly the planning authority has power to require an EA at any time before full compliance with the conditions.
Under the EIA Directive, if a project is “likely to have significant effects on the environment by virtue, inter alia, of [its] nature, size or location”, then (a) in the circumstances set out in Article 4(1) of, and Annex 1 to, the EIA Directive, there is a mandatory requirement for an EA before development consent is given; and (b), in other circumstances, set out in Article 4(2) of, and Annex II to, the EIA Directive, the planning authority has to consider whether to require an EA on a case by case basis or in accordance with thresholds or criteria set by the member state.
The EIA Directive was transposed into English law by the Regulations. These have since been amended, and, when we refer to the Regulations, we refer to the Regulations as so amended. The court must, so far as possible, interpret the Regulations in conformity with the EIA Directive: see, for example, Commissioners of Customs & Excise v IDT Card Services Ireland Ltd [2006] STC 1252.
In this case Mrs Condron contends that Article 4(2) of the EIA Directive applies to the CDP by virtue of Annex II, paragraph 2(e) and 10(b). It is unnecessary to set out the provisions of Article 4 or of Annex II apart from these provisions.
Article 4 (2) provides:
“2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through
(a) a case by case examination, or
(b) thresholds or criteria set by the Member State
whether the project shall be made...
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