R v North Yorkshire County Council, ex parte Brown and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD GOFF OF CHIEVELEY,LORD JAUNCEY OF TULLICHETTLE,LORD LLOYD OF BERWICK,LORD HOFFMANN
Judgment Date11 Feb 1999
Judgment citation (vLex)[1999] UKHL J0211-2

[1999] UKHL J0211-2

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Lloyd of Berwick

Lord Hoffmann

Regina
and
North Yorkshire County Council
(Appellants)
Ex Parte Brown And Another
(Respondents)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, and with which I agree, I would dismiss this appeal.

LORD GOFF OF CHIEVELEY

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

3

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD LLOYD OF BERWICK

My Lords,

4

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. For the reasons he gives I too would dismiss the appeal.

LORD HOFFMANN

My Lords,

5

Preston-under-Scar is a village in North Yorkshire, designated as a Conservation Area. It lies just outside the Yorkshire Dales National Park. Near the village is Wensley Quarry, from which limestone has been extracted for many years. Planning permission was granted in 1947. This old permission is not subject to any time limit or conditions. It allows quarrying not merely in the existing quarry but over some 322 hectares of the surrounding countryside.

6

Section 22 and Schedule 2 of the Planning and Compensation Act 1991 gave the North Yorkshire County Council, as "mineral planning authority", power to impose conditions upon the operation of the quarry. The Council consulted widely and advertised its intention to determine the conditions. Many people sent written representations. But the Council did not undertake an environmental impact assessment in accordance with the European Union Council Directive of 27 June 1985 (85/337/EEC). This directive was adopted to protect the environment throughout the European Union by requiring Member States to ensure that planning decisions likely to have a significant environmental effect were taken only after a proper assessment of what those effects were likely to be. It requires that before the grant of "development consent" for specified kinds of project, Member States should ensure that an environmental impact assessment is undertaken.

7

On 6 June 1995 the Council determined the conditions. The respondents, who are householders in the village of Preston-under-Scar, applied for judicial review to quash the determination on the ground that no environmental impact assessment had been undertaken. The Council says that an assessment was not required because the imposition of conditions is not a "development consent" within the meaning of the Directive. The consent which allows the quarry to operate was the planning permission granted in 1947. This remains in force. The United Kingdom government has given effect to the Directive by making the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which determine the circumstances in which an environmental impact assessment will be required. But they apply only to cases in which planning permission is granted. The Council takes the view that the Directive does not require anything more.

8

The appeal therefore turns upon the meaning of the concept of "development consent" in the Directive. This is a concept of European law, which has to be applied to the planning systems of all the Member States. To ascertain its meaning, it is necessary to examine the language and in particular the purpose of the Directive. One must then examine the procedure for determining conditions as part of the United Kingdom planning system and decide whether it should be characterised as a granting of "development consent" within the meaning of the Directive.

9

I start, therefore, with the Directive. The sixth recital states the objective:

"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out: whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question."

10

"Development consent" is defined in Article 1.2 as "the decision of the competent authority or authorities which entitles the developer to proceed with the project." The term "project" is widely defined to include, specifically, "the extraction of mineral resources."

11

The general obligation imposed by the Directive is contained in Article 2.1:

"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."

12

Article 4 distinguishes between certain types of major project (such as oil refineries, nuclear power stations and motorways) which are conclusively presumed to have significant environmental effect and other kinds of project which may or may not have such an effect, depending upon the circumstances. For projects of the former kind, which are listed in Annex 1, an assessment is mandatory. For the latter kind, listed in Annex II, an assessment must be undertaken "where Member States consider that their characteristics so require." For this purpose the Member State must specify which projects have such characteristics or establish criteria by which the question can be decided. Articles 5 to 10 specify the kind of information needed for the assessment and the procedure which must be followed.

13

Quarrying (mineral extraction) falls within Annex II. So the United Kingdom is required to establish criteria for determining whether a grant of "development consent" for quarrying should require an environment impact assessment. As I have said, the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 were intended to establish such criteria. These provide that an assessment shall be required for developments falling within Annex II if the development "would be likely to have significant effects on the environment by virtue of facts such as its nature, size or location." But they apply only to a grant of planning permission.

14

I consider next the procedure by which the conditions are determined under the Planning and Compensation Act 1991. Old mining permissions such as that for Wensley Quarry exist in many parts of the country. They were granted under the Town and Country Planning (General Interim Development) Order 1946 or preceding legislation and continued in force by section 77 of the Town and Country Planning Act 1947 and subsequent legislation. Forty years later, in a time of greater environmental consciousness, of which the Directive is one manifestation, they gave rise to two kinds of problem. First, there was no register from which their existence could be discovered. A register of planning applications was first introduced by the 1947 Act but did not record earlier permissions which were deemed to continue. So the commencement or resumption of mining or quarrying sometimes came as an unpleasant surprise to people who had bought property in the area many years after the permission had been granted. Secondly, the old permissions were frequently (as...

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