R v Durham County Council and others, ex parte Huddlestone

Application for registration of permission to extract minerals – Applicant failing to provide environmental impact assessment and relying on deeming provision contained in Planning and Compensation Act 1991 granting registration – Deeming provision contrary to Council Directive 85/337/EEC – Application for judicial review asserting rights conferred by Directive and seeking to quash registration – Application dismissed – Appeal allowed Sherburn Stone Co Ltd (Sherburn), the second respondent, was the holder of a dormant planning permission to extract minerals on a large site at Broadwood Quarry, Frosterley, Durham. By virtue of section 22(3) of the Planning and Compensation Act 1991, the permission had been suspended on the ground that no quarrying had been carried out there for at least two years. In February 1999 Sherburn applied for registration of the permission, in order to give it effect, and for the determination of the appropriate conditions to which it would be subject once revived. Sherburn submitted a scheme of suggested conditions with the application. In reliance on R v North Yorkshire County Council, ex parte Brown [1999] 1 PLR 116, the council informed Sherburn that an environmental impact statement would be required as part of the registration process because it involved a determination by a mineral planning authority within the meaning of section 22 of and Schedule 2 to the Act, and because the planned reactivation of the quarry was a development falling within Council Directive 85/337/EEC. Sherburn did not submit an environmental impact statement. In May 1999 it wrote to the council stating that, as the three-month period under the Act had expired without a determination of its application, the deeming provision applied by virtue of para 2(6)(b) of Schedule 2 to the Act, with the effect that permission was granted subject to the conditions set out in Sherburn’s application. The applicant, who lived adjacent to the quarry, was concerned about its proposed reactivation and brought judicial review proceedings challenging the deemed determination. It was common ground that a section 22 determination was “development consent” for the purposes of the Directive and that the Directive required the UK to insist upon an environmental impact assessment as a precondition of making the determination. It was also agreed that UK legislation had manifestly failed to implement the Directive, in so far as it deemed a determination to have been made in the circumstances described in para 2(6)(b) of Schedule 2. The applicant submitted that the deemed determination should be quashed because it was not accompanied by an environmental impact statement as required by the Directive. He submitted that the council’s hands were not tied by the 1991 Act and its deeming provision, and that it was open to the applicant to insist that the state, of which the council were a part, should not be able to rely upon its failure properly to implement the Directive. He argued that the court, either by reading the deeming provision down or by disapplying it, should give effect to the UK’s obligation to the European Community. The Secretary of State for the Environment, Transport and the Regions, the third respondent, submitted that the applicant was seeking to deploy the doctrine of direct effect in an impermissible way to expose Sherburn to criminal sanctions. The judge dismissed the application, holding that an application for judicial review by an individual against a state authority, such as the council, could not confer upon that authority rights that they would not otherwise enjoy or impose upon them obligations to which they would not otherwise be subject. Held: The appeal was allowed. The failure of the state correctly to transpose the Directive had inevitably rendered the council impotent to implement it other than in the manner prescribed by the Act. However, the applicant, as an individual with a recognised interest in the proper implementation of the Directive, was entitled, as a citizen, to assert the rights conferred by the Directive against the state. Accordingly, the applicant was entitled to insist that the state should act in conformity with the Directive, since the council, of their own motion, could not. In doing so, he was seeking neither to criminalise Sherburn nor to secure some change in his own relationship with it. He was merely seeking to give the Directive an effect that gave the council the power that they ought to have had. Therefore, the application succeeded to the extent that the council and Sherburn were to treat the statutory deeming provision as ineffective. Robert McCracken and Stephen Tromans (instructed by Richard Buxton, of Cambridge) appeared for the applicant; Reuben Taylor (instructed by the solicitor to Durham County Council) appeared for the first respondents; James Findlay (instructed by Aaron & Partners) appeared for the second respondent; David Elvin (instructed by the Treasury Solicitor) appeared for the third respondent. Thomas Elliott, barrister