PP 2000/22

In the background to the Euro-problem that arose in R v Durham County Council, ex parte Huddlestone [2000] EGCS 39 stand the host of official bodies (agencies), to be found in the UK and elsewhere, that have the job of licensing a variety of activities (construction projects, new medicines, taxi cabs or whatever) thought to be a proper subject for control. Time for a basic model. An EU directive requires member states to legislate for uniform controls in a particular area. The UK has failed to implement the directive in so far as parliament has enacted, or failed to repeal, a provision (a rogue provision) that runs counter to the directive. This is great news for A, who would otherwise fall foul of the controls, but bad news for B, who is genuinely aggrieved that the controls have not come into force. B complains to the relevant agency, which says that, sadly, its hands are tied by the rogue provision. B takes judicial review proceedings, in which A invokes a rule, fashioned by the European Court, and known as the rule against “horizontality”. Simply put (see Huddlestone for a comprehensive review of Euro-learning), the rule says that while B can use the directive against the agency or relevant central government department, he cannot, so long as the rogue provision is in force, use the directive so as to affect his legal relationship with A, nor can he use it so as to criminalise the otherwise innocent activity of A. Turning to the facts of Huddlestone, which concerned the alleged revival of an old mining permission under the Planning and Compensation Act 1991, the admittedly rogue provision was para 2(3) of Schedule 2 to the Act. By that paragraph, a grant of the necessary permission is deemed to be made, where the applicant, having duly applied to have the conditions determined by the mineral planning authority, receives no determination one way or the other within the following three months. The applicant quarrying company accepted that, if Directive 85/337/EEC had been brought fully into force, no grant could have been made before the authority had considered the additional environmental information required by the directive and the UK regulations made thereunder. The company went on to argue, however, that the court could not untie the authority’s hands without offending the horizontality rule, since the denial or variation of the permission would favour the objector at great expense to the company. That argument was accepted in the court below, but rejected by the Court of Appeal, which pointed to “a fundamental difference between imposing legal obligations on an individual which limit his freedom of action vis-à-vis other individuals and [on the other hand] placing conditions upon that individual’s entitlement to secure a benefit from the state”. The court saw no possibility, on the facts, of the applicant incurring criminal liability, but accepted that “more problematic considerations would have arisen” if the applicant had actually gone ahead with his quarrying. As a result of the steps taken by Mr Huddlestone as objector, both the authority and the company had to treat the statutorily deemed permission as ineffective. Because of the importance of the concessions made, the decision offers only limited assistance to objectors in related cases.