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

Environmental impact assessment categories must be interpreted broadly and purposively, but their express wording and contextual limits remain controlling. A surface installation processing coal already extracted elsewhere is not an installation for the extraction of coal merely because it is connected with mining. An urban development project must have an urban character; a rural industrial facility does not qualify simply because it includes a visitor centre or car parking. A national court of final instance need not refer a question where the correct interpretation is acte clair. The relationship between domestic judicial review time limits and EIA Directive rights under Wells was left undecided.

Mrs Elizabeth Condron sought permission to challenge four planning permissions for the development, refurbishment and continued use of Cwmbargoed Disposal Point. The site received, processed and transported coal from an adjacent open-cast mining and land-reclamation scheme. The planning authorities concluded that no environmental assessment was required under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999.

Beatson J refused permission to apply for judicial review. The Court of Appeal considered whether the permissions arguably fell within paragraphs 2(e) or 10(b) of Schedule 2 to the Regulations, and whether delay prevented the claim, particularly while conditions attached to some permissions remained outstanding.

1. Disposition. Arden LJ refused permission to appeal and dismissed the application. Wilson LJ and Henderson J agreed with the result.
2. Paragraph 2(e). The phrase surface industrial installations for the extraction of coal requires a direct connection with extraction operations. The coal arrived at the disposal point after extraction elsewhere. The broad purpose of the EIA Directive did not justify replacing the statutory word “for” with “in relation to”. The contextual reference to surface installations and the structure of Schedule 2 supported the judge’s conclusion that the provision did not apply.
3. Paragraph 10(b). An urban development project must possess an urban character. The disposal point was an industrial facility in a rural setting serving the coal and energy industries. Its visitor centre and car parking did not make it an urban development project. The reasoning in Goodman was not necessary to resolve this appeal.
4. References to the Court of Justice. The questions under paragraphs 2(e) and 10(b) were acte clair. Applying the principles in CILFIT, the court considered the Directive’s purpose, its different language versions and the possibility of autonomous European Union meanings. There was no sufficient doubt requiring a reference under article 267 of the Treaty on European Union.
5. Delay. Arden LJ considered it unnecessary to decide whether Wells permitted a late challenge while conditions remained outstanding. She expressed considerable doubt on that point, observing that domestic limitation periods generally fall within member-state procedural autonomy, subject to equivalence and effectiveness, and that remedies must be proportionate. Wilson LJ agreed that delay might independently defeat the claim but rejected the suggestion that Wells contained an internal inconsistency. Henderson J expressed no view on that issue.
6. Late points. The court was not obliged to consider new provisions raised only after circulation of the draft judgments. Such use of draft judgments was improper, applying the approach in Edwards and Cooper. No further reference was made.

1. Court of Appeal (Civil Division) — On 20 May 2010, refused permission to appeal and dismissed the application.
2. Queen’s Bench Division (Administrative Court), Beatson J — On 1 May 2009, refused permission to apply for judicial review of the four planning permissions.