Wirral Borough Council v Brock Plc

For an application under Environment Act 1995, Schedule 13 paragraph 9(2) identifies the information required for a valid application. Where that information is supplied within time, omission of an environmental statement does not invalidate the application. A notice requiring further details under paragraph 9(10) must be given within the statutory one-month period. The three-month determination period under paragraph 9(9) may be extended by written agreement. Whether such an agreement exists is determined by construing the correspondence in context, including the parties’ subsequent conduct. A refusal of a requested six-month extension may nevertheless accept the statutory three-month period running from the later date on which further details were supplied.

Brock held two mineral extraction permissions for Prenton Quarry. After the Council listed the quarry under Schedule 13 to the Environment Act 1995, Brock submitted an application for determination of conditions on 28 February 2000. An environmental statement and further copies were supplied later.

The Council treated the application as valid from 20 April, determined conditions on 17 July, and rejected Brock’s contention that the conditions were deemed determined on its proposed terms. McCombe J ruled in Brock’s favour and granted declaratory relief. The Council appealed, arguing that the application was initially incomplete, that time had been extended, and that the environmental impact assessment Directive required the July determination to prevail.

1. The appeal was allowed unanimously. The Court of Appeal held that the application delivered on 28 February 2000 contained all matters required by Schedule 13 paragraph 9(2). It was therefore a valid application made within the specified time. The environmental statement could constitute further details, but its later delivery did not invalidate the application.
2. A notice under paragraph 9(10) had to be given within one month of receipt of the application. The Council’s letter of 30 March was out of time and could not operate as such a notice. If given in time, the request for information about copies, their availability and cost would have been capable of amounting to a request for further details.
3. The three-month determination period under paragraph 9(9) had been extended by written agreement. The letters of 30 March and 20 April, read in their factual context and in light of the parties’ subsequent conduct, showed that Brock rejected a six-month extension but accepted the statutory three-month period beginning on 20 April. The Council’s determination on 17 July was accordingly in time.
4. The Court expressed obiter views on the Council’s Directive arguments. Declaratory relief was discretionary, but neither the possibility of a third-party challenge under Directive 85/337/EEC nor the absence of an application to quash the Council’s determination justified refusing relief. The court was inclined to hold that declaring the July conditions valid and binding would amount to direct enforcement of an unimplemented Directive by the State against an individual. The point was left for decision in another case, since it was unnecessary to the result.

• Court of Appeal (Civil Division): The Council’s appeal was allowed. [2004] EWCA Civ 1611
• High Court (McCombe J): Judgment was given for Brock, including a declaration that the conditions were deemed determined on Brock’s proposed terms.