Before the Town and Country Planning Act 1947 came into effect, permission for the working of minerals and quarries had been granted between 1943 and 1948 by what were known as Interim Development Orders (IDOs). These were often in broad terms and, as in the current case, subject to no conditions. Nevertheless, they were preserved as valid permissions by subsequent planning legislation and, although permissions must normally be acted on within a set period, an exception was made in the case of IDOs.
The Planning and Compensation Act 1991 dealt with the problem of long dormant permissions suddenly being reactivated without regard to contemporary environmental standards by requiring that unless works were commenced before 1993, the holders of such permissions had to apply to the local planning authority to have them registered and made subject to any new conditions imposed by the authority. There are believed to be about 1,000 dormant IDOs in England and Wales.
In the present case, registration of the IDO was made by the owner of the land in 1993 following a public inquiry. The County Council, as the minerals planning authority, imposed a number of conditions relating to the operation, restoration and aftercare of the site, and permitted extraction on only a small proportion of the site. The landowner appealed to the Secretary of State against the conditions, though the appeal was held over until the present case had been determined.
The key issue in the legal proceedings was whether the requirements of the Directive on environmental assessment applied to the registration procedures which entitled the owner to reactivate the permissions after 1993.
In the High Court in 1996, Mr Justice Hidden held that it was clear from the UK regulations implementing the Directive that where planning permission had been granted before the Directive came into effect no assessment was required. Although the permissions granted under the old IDOs could not be acted upon without registration, he considered that the structure of the 1991 legislation made it clear that the permission itself remained valid, and it was the permission, once registered and subject to any conditions, that entitled the developer to proceed. No environmental assessment was therefore required (ENDS Report 265, pp 42-43 ).
In the High Court the applicants, who were local residents supported by a number of environmental organisations, had argued that the Directive had "direct effect" and that, whatever the state of the British regulations, one had to look at the wording and structure of the Directive itself. Mr Justice Hidden felt that the Directive's provisions were not sufficiently precise to have direct effect, but recognised that the arguments had wider significance and granted leave for appeal.
Perhaps rather surprisingly, the County Council accepted before the Court of Appeal that the Directive did indeed have direct effect. The Appeal Court did not have to consider this issue any further, but could move straight on to examine the wording of the Directive.
The Council's concession may have been due to the 1996 decision of the European Court of Justice in the Dutch dykes case issued after the hearing in the High Court. The Advocate General had argued that certain provisions of the Directive had direct effect, but the European Court itself avoided answering the question precisely (ENDS Report 264, pp 44-45 ).
Article 2 of the Directive requires assessment procedures to apply to specified classes of project "before consent is given". "Consent" is defined in Article 1 as "the decision of the competent authority or authorities which entitled the developer to proceed with the project."
The question for the Appeal Court was whether the registration procedure was one that entitled the developer to proceed and was therefore a consent under the Directive, or whether, as the County Council argued, it was one that simply registered the pre-existing entitlement to proceed with the project. The 1991 legislation did not entitle authorities to refuse registration, and any attempt to impose unreasonable conditions in order to prevent development could be challengeable before the courts.
Lord Justice Pill, giving judgement for the Court, concluded that the registration scheme under the 1991 Act was in fact the decision which entitled the developer to proceed under the terms of the Directive. A developer could not reactivate an old IDO without registration, and the entire purpose of the 1991 legislation was to regularise and make subject to modern controls permissions granted at a time when there were no comprehensive planning controls. "The fact that old mining permissions, as in the present case, may be unconditional - an unthinkable situation in modern times - demonstrates the comprehensive exercise necessary under the 1991 procedures and in my view contemplated by them."
The registration and the grant of conditions were therefore quashed. Presumably, the Government will now need rapidly to amend the statutory provisions and related guidance which impose no formal environmental assessment requirements. Clearly, the application of these will not necessarily prevent reactivation of old IDOs, but will at least require a more systematic consideration of their environmental implications and greater consultation than might otherwise have been the case. An opportunity to consider the need to amend the environmental assessment regulations in the light of the Court of Appeal decision will shortly present itself, since the 1997 amending Directive on environmental assessment must be implemented by 1999.
The Brown case raises the general issue of the application of the Directive to projects where a succession of various types of permissions or authorisations are required before a development can become operational. Some environmental groups have argued that integrated pollution control authorisations or waste management licences might also represent a "development consent" under the Directive. However, Lord Justice Pill was careful to confine his judgement to the particular statutory scheme concerning mineral workings, and cautioned that it was not to be taken as applying to other areas: "The last of the decisions giving consent is not necessarily or universally the relevant decision for the purposes of Articles 1 or 2 of the Directive in my view."
It was perhaps unfortunate that because the County Council made the concession concerning direct effect that the Court of Appeal was not required to give a definitive ruling on the issue. It remains to be seen whether in future cases where the Government rather than a local authority is involved, such a concession will generally be made.
Interestingly, in a recent brief unreported judgement (Simpson v Attorney General, High Court, 17 December 1997), the High Court, during initial striking out proceedings, held that the environmental assessment Directive does not grant any private rights such as to give rise to Frankovitch claims for damages where non-implementation occurred. This reflects the High Court's decision in the Bowden case concerning the bathing water and shellfish Directives reported last month (ENDS Report 276, pp 49-51 ).
However, in the Simpson case, Sir Peter Webster, sitting as a High Court judge, noted the Dutch dykes decision and indicated the relevance of the direct effect doctrine. Although he made it clear that he was not making a formal decision on the point, he said that individuals "may, in an appropriate case, have the public law right to require that the Directive be brought into force and that it be properly applied."