North Yorkshire County Council, Ex Parte Brown and Another, R v.

The House of Lords held that a decision under section 22 and Schedule 2 of the Planning and Compensation Act 1991 to determine conditions for historic mining permissions can amount to a "development consent" within the meaning of Council Directive 85/337/EEC (the environmental impact assessment Directive). The Directive requires that, before consent is given, projects likely to have significant environmental effects be subject to an environmental impact assessment in accordance with Articles 1, 2 and 4 and the procedures in Articles 5–10. The court analysed the purpose and wide scope of the Directive and the UK statutory scheme, concluding that the 1991 procedure was a freestanding opportunity to assess environmental effects and therefore could require an assessment under the Directive and the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. The appeal was dismissed.

This is an appeal by North Yorkshire County Council against a decision in judicial review brought by local residents (the respondents) challenging the Council's determination of conditions for the operation of an historic quarry at Wensley. The respondents sought to quash the Council's determination on the ground that the Council had not carried out an environmental impact assessment under Council Directive 85/337/EEC (the 1985 Directive) and the domestic implementing regulations.

The key legal issues were:

• whether the Directive's concept of "development consent" (Article 1.2) covers a decision to determine conditions under section 22 and Schedule 2 of the Planning and Compensation Act 1991;
• whether the procedure created by the 1991 Act is a new, freestanding decision-making step requiring an environmental impact assessment, or merely a subsidiary regulation of a project for which the principal consent was already given in 1947;
• how the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 and Article 4 of the Directive apply to such determinations.

The House of Lords considered the Directive's wide purpose — to ensure planning decisions likely to have significant environmental effects are taken only after proper assessment — and noted that the Directive defines "development consent" as the decision entitling the developer to proceed and includes mineral extraction in the definition of "project." The court examined the statutory machinery of section 22 and Schedule 2 (registration, the obligation to apply for determination of conditions, the power of the mineral planning authority to impose conditions and the consequence of non-compliance) and concluded that the determination of conditions was necessary to entitle the developer to proceed (or continue) and was therefore within the concept of "development consent." The Lords distinguished "pipeline" cases (for example, where principal consent was given before the Directive) and noted that where the principal environmental issues had not been addressed at the time of the original grant, the 1991 procedure was a new opportunity to assess those effects. The court concluded the Council's decision could require an environmental impact assessment under the Directive and domestic regulations, leaving it to the Secretary of State and the Regulations to specify the criteria under Article 4.

Appeal dismissed. The House of Lords held that the determination of conditions under section 22 and Schedule 2 of the Planning and Compensation Act 1991 can amount to a "development consent" within the meaning of Council Directive 85/337/EEC because it is a decision necessary to entitle the developer to proceed; accordingly the Directive may require an environmental impact assessment to be carried out in accordance with Article 4 and the implementing regulations before such consent is given, depending on the criteria established by the Secretary of State.

Appeal to the House of Lords from the Court of Appeal, in which Pill L.J. gave the leading judgment. The House of Lords considered and accepted the reasoning of Pill L.J. as elaborated in its judgment. No neutral citation for the Court of Appeal decision is given in this judgment.