Condron, R (on the application of) v Merthyr Tydfil County Borough Council & Ors

The EIA screening duty arises only where development falls within a description in Schedule 1 or Schedule 2. Those descriptions require a broad, purposive construction, but remain subject to statutory context. Where development falls within a Schedule description, failure to screen is reviewable. If the statutory expression is imprecise, the court may intervene only where the authority’s conclusion is irrational. A coal disposal facility was not arguably a surface installation for coal extraction, an urban development project, or an extension of nearby opencast mining. Distinct projects need not be combined where their functions, purposes and histories have no logical connection. Permission to seek judicial review was refused, also because of delay.

The claimant sought renewed permission to judicially review four planning permissions granted by two local planning authorities to a coal operator for works and continued use of the Cwmbargoed disposal point. The claimant argued that the applications required screening under the EIA Directive and the Environmental Impact Assessment Regulations 1999, and that the authorities had failed to consider the cumulative effect of the disposal point and a proposed change to transport arrangements for the nearby Ffos-y-fran opencast mine.

The court also considered delay, venue and procedural compliance. The central issue was whether the applications arguably fell within relevant Schedule 2 descriptions, including development connected with coal extraction, urban development, or an extension of Schedule 1 development.

1. Application refused. The claimant had not shown an arguable error of law in the authorities’ failure to undertake EIA screening.
2. Article 4 of the EIA Directive, implemented by the Environmental Impact Assessment Regulations 1999, requires screening only for projects of a description listed in Schedule 1 or Schedule 2. The descriptions must be construed broadly in accordance with the Directive’s purpose, but statutory words must still be read in context.
3. The approach in R (Goodman) v London Borough of Lewisham and Big Yellow Property Company required the authority first to decide whether the development fell within the descriptions and limits in Schedule 2. If it did, failure to undertake the preliminary screening decision would be an error of law susceptible to judicial review. The qualification identified in R v Monopolies and Merger Commissions, ex parte South Yorkshire Transport applied where the statutory expression was imprecise: the court could intervene only if the conclusion was outside the range of rational responses.
4. The disposal point was not arguably within Schedule 2 paragraph 2(e). The word “for” meant for use as an essential part of the mining development described in the surrounding provisions, rather than merely “in relation to” coal extraction. Nor was it arguably an urban development project under paragraph 10(b), since the facility was not in an urban area and did not urbanise a rural area. Paragraph 13 did not apply because the applications concerned a separate disposal point and did not involve a change to or extension of the Ffos-y-fran opencast project.
5. The cumulative-effects ground was also not arguable. The proposed variation of the Ffos-y-fran transport condition post-dated three permissions. There was no evidence that the permissions would increase Ffos-y-fran output. The sites had distinct functions, purposes and histories, and the disposal point also served other mines.
6. The claim was substantially out of time. The delay, completion of works authorised by the 2007 permissions and resulting prejudice justified refusal. Article 10a did not make a time-limited review procedure inadequate.
7. A generalised allegation that a regional court would be biased, unsupported by evidence, was not a proper basis for removing the case from Wales. The court also observed that wholesale procedural non-compliance could independently justify refusing permission.

The formal order was: Application refused. Costs were left for written submissions and summary assessment.

This was a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers by Collins J on 9 March 2009. The High Court refused the renewed application.