R v North Yorkshire County Council, Ex parte Brown (Brown, Ex parte)

A decision determining the conditions under which development may commence or continue can constitute “development consent” under Council Directive 85/337/EEC, although an earlier planning permission remains the source of the developer’s right. The question is whether the later decision is a necessary, freestanding examination of substantial environmental issues, rather than the detailed regulation of a project whose principal environmental consent has already been given.

A conditions procedure for old, unrestricted mineral permissions therefore falls within the Directive where it enables a modern assessment of environmental effects. An environmental impact assessment is required only if the project’s characteristics meet criteria established under article 4.2.

A limestone quarry operated under an unconditional planning permission granted in 1947. Section 22 and Schedule 2 to the Planning and Compensation Act 1991 required the permission to be registered and its operating conditions to be determined by the mineral planning authority. North Yorkshire County Council determined the conditions without undertaking an environmental impact assessment.

Local householders obtained judicial review of that determination. The Council appealed, contending that the 1947 permission was the relevant “development consent” under Council Directive 85/337/EEC and that the later determination concerned only the manner of working. The central issue was whether the statutory determination of conditions itself constituted development consent for the purposes of the Directive.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Nicholls of Birkenhead, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Lloyd of Berwick agreed with his reasons.

2. Per Lord Hoffmann, “development consent” is an autonomous European concept whose meaning must be found from the language and purpose of Council Directive 85/337/EEC. Its purpose is to ensure that decisions likely to affect the environment are made with full information. The concept accordingly has a wide scope and broad purpose.

3. The 1947 permission remained the legal source of the developer’s right to quarry. Nevertheless, the developer could not commence or continue operations unless the authority determined, or was deemed to have determined, the applicable conditions. That necessary determination therefore entitled the developer to proceed for the purposes of article 1.2, although it decided how, rather than whether, quarrying could occur.

4. The statutory procedure was not merely detailed regulation following an earlier determination of the substantial environmental issues. It created a new and freestanding examination of permissions granted without serious consideration of modern environmental concerns. The authority had a wide discretion to control noise, vibration, dust, habitats, restoration and other environmental effects. Its determination was consequently “development consent” capable of requiring an environmental impact assessment.

5. A different result applies where a later decision merely regulates in detail a project whose principal consent, addressing the substantial environmental issues, has already been given. The pipeline principle illustrated by Reg v Secretary of State for the Environment, Ex parte Greenpeace Ltd [1994] 4 All E.R. 352 did not govern this freestanding statutory review.

6. The distinction between dormant and active mineral permissions did not affect the result. In each case, determining conditions was necessary to permit the commencement or continuation of development. The House expressed no view on whether the statutory deemed-determination provision should be disapplied where an authority failed to act.

7. The Council was not necessarily required to undertake an assessment in every case. Whether one was required depended on the characteristics of the proposed development. The Secretary of State had to establish criteria under article 4.2, which the Council must then apply.

1. House of Lords: The Council’s appeal was dismissed unanimously. The House agreed with the reasoning of Pill LJ.

2. Court of Appeal: Pill LJ gave reasons concluding that the statutory determination of conditions fell within the Directive’s concept of development consent. The citation and formal order are not stated in the judgment.

3. Divisional Court: The householders sought judicial review to quash the Council’s determination because no environmental impact assessment had been undertaken. The citation and formal order are not stated in the judgment.