Wirral Borough Council v Brock Plc [2004] EWCA Civ 1611

Case No A2/2004/0779[2004] EWCA Civ 1611
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL DISTRICT REGISTRY
(McCOMBE J)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 3 December 2004
Before
LORD JUSTICE POTTERLORD JUSTICE LONGMORESIR WILLIAM ALDOUS
Between
WIRRAL BOROUGH COUNCILAppellantBROCK PLCRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Vincent Fraser QC (instructed by Wirral Borough Council) for AppellantMr Stephen Sauvain QC and Mr Ian Ponter (instructed by Messrs Mace & Jones) for Respondent
JudgmentThe Right Honourable Sir William Aldous :
[1]On 30 March 2004 McCombe J gave judgment in favour of Brock Plc in an action by Brock against the Wirral Borough Council. The relief granted included a declaration that the Council should be treated as having determined that the conditions to which two planning permissions were subject were the conditions proposed by Brock in their application for approval of conditions dated 28 February 2000.

The Legal Background

[2]The dispute between the parties is concerned with Schedule 13 of the Environment Act 1995 (the 1995 Act). It provides a code for reviewing planning permissions granted between 1947 and 1982 for the extraction of minerals. That was deemed necessary as planning permissions granted in that period were not subject to the scrutiny which is deemed necessary for environmental reasons in modern times.[3]Section 96 of the 1995 Act brought into effect Schedule 13. Paragraph 3 of Schedule 13 required a mineral planning authority to prepare a list, called the first list, of certain mineral sites in its area. Paragraph 3(4) required the list to include within it the date by which an application had to be made to the mineral planning authority by any person who owned the land or was entitled to an interest in it. Paragraph 9 sets out the requirements for such applications and how they are determined. For the purposes of this appeal the relevant parts are as follows:
“9(1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active phase 1 or phase 2 site, apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject. (2) An application under this paragraph shall be in writing and shall – (a) identify the mineral site to which the application relates; (b) specify the land or minerals comprised in the site for which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest; (c) identify any relevant planning permissions relating to the site; (d) identify, and give an address for, each other person that the applicant knows or, after reasonable enquiry, has cause to believe to be an owner of any land, or entitled to any interest in any mineral, comprised in the site; (e) set out the conditions to which the applicant proposes the permissions referred to in (c) above should be subject; and (f) be accompanied by the appropriate certificate (within the meaning of sub-paragraph (3) … below). ………. (6) Where the mineral planning authority receive an application under this paragraph in relation to a dormant site or an active phase 1 or phase 2 site they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subject. ………. (9) Subject to sub-paragraph (10) below, where, within the period of 3 months from the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any relevant planning permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions. (10) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month from having received the application give notice to the applicant – (a) stating that they are of such opinion; and (b) specifying the further details which they require, and where the authority so serve such a notice the period of 3 months referred to in sub-paragraph (9) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice. (11) Without prejudice to the generality of sub-paragraph (10) above, the further details which may be specified in a notice under that sub-paragraph include any – (a) information, plans or drawings; or (b) evidence verifying any particulars of details supplied to the authority in respect of the application in question, which it is reasonable for the authority to request for the purpose of enabling them to determine the application. ………. (12)(1) Subject to paragraph (8)(11) above, where no application under paragraph (9) above in respect of an active Phase 1or Phase 2 site has been served on the mineral planning authority by the date specified in the first or, as the case may be, the second list as the date by which applications under that paragraph in respect of that site are to be made, or by such later date as may at any time be agreed upon in writing between the applicant and the authority, each relevant planning permission relating to the site shall cease to have effect, except insofar as it imposes any restoration after care condition, on the day following the last date on which such an application may be made.”
[4]The schedule made no reference or allowance for the Council Directive of June 27, 1985 (85/337/EEC) which ensures that before planning consent is given there is an assessment of environmental effects. Article 1 of that Directive provided that it should apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment. Article 2 requires Member States to adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment are made subject to an assessment with regard to their effects. Article 3 requires that an environmental impact assessment (environmental statement) should identify, describe and assess in appropriate manner the direct and indirect effects of the project on a number of factors. Article 6 requires Member States to take measures necessary to ensure that authorities likely to be concerned by the project, by reason of their specific environmental responsibilities, are given an opportunity to express their opinion on the information supplied by the developer before consent is given .

The Facts

[5]Prenton Quarry has the benefit of two planning permissions granted by the Borough Council of Birkenhead on 27 July 1950 and 15 June 1959. Each granted consent for the winning and working of minerals, namely clay.[6]In accordance with its duty under the 1995 Act the Council produced a list which included the Prenton Quarry. By letter dated 24 February 1999, the Council informed Brock that the Prenton Quarry had been added to the list and that an application for determination of conditions had to be made by 29 February 2000.[7]Brock delivered a written application to the Council on 28 February 2000. The application included paragraphs dealing with the matters listed in paragraph (9) (2) (a) to (f) of the Schedule to the 1995 Act. The letter continued:
“Because of the acknowledged sensitivity of the site, Brock is providing an Environmental Statement in support of its actions. The submission comprises three copies of the following: (1) Application form. (2) Statutory notices. (3) Environment statement (to follow). ………. The company believes that it has submitted a valid application.”
The company believes that it has submitted a valid application.”[8]Four copies of an environmental statement were sent to the Council on 2 March 2000.[9]The Council did not reply to the letter of 28 February until 30 March 2000. The letter of that date stated:
“I refer to your submission dated 28 February in relation to the above. I regret the delay in responding. I acknowledge that the main submission complies with MPG14 and Schedule 13 of the Act; was received by the Local Planning Authority on 29 February; and therefore despite what I have to say below has prevented the permissions lapsing. As you will be aware, the Courts have held that such an application must be accompanied by an Environmental Statement. Four copies of a document of that name were received later that week. The content leaves much to be desired but the Authority will take this into account in dealing with the application.”
The letter goes on to point out that the Regulations relating to environmental statements have to be complied with and that the local planning officer had to send out copies of the statement to certain consultees. The letter continued:
“The Regulations provide also that further copies must be available at a specified address for a stated cost. Until I know this I am unable to produce the relevant public notices. While therefore I accept that you have protected the permissions by your submission, you have not provided the documents which would allow me to deal with this application as required by the law. At present I have three copies. I need an extra ten copies of statement and application; and also the information referred to above regarding the charge to be made for extra copies and the name and address for this purpose. On receipt of the above the three months allowed for determination will begin. You will appreciate, however, that this will not be an easy application to consider, and even if it were, sixteen weeks would normally be allowed for an equivalent planning application. There may well be queries arising from the lack of information in the Environmental Statement. I would therefore ask for your agreement to extend the period for determination to at least 6 months.”
[10]With a letter dated 20 April 2000 Brock sent an additional ten copies of the environmental statement and non-technical summary. They informed the Council that copies had not been sent to anybody else and that further copies could be obtained free of charge from their offices. Their letter concluded:
“We are not prepared to grant an extended period for determination to at least six months, which you have requested, because we believe this will introduce delays which can otherwise be avoided by adopting a more disciplined approach by the Council and by the Consultees properly focusing their attentions on the application within the statutory period of three months. For this reason, our position remains that the 3 month statutory period in accordance with the requirement of the 1995 Environment Act must continue to apply to this application.”
[11]On 28 April 2000 the Council replied:
“Thank you for addressing the matters in my letter of 30 March. I confirm that a valid application has now been made and treated as received on 20 April 2000. The three month period for determination, therefore, ends 20 July 2000.”
[12]On 3 May 2000 the Council put out a site notice notifying the public of the application and that representations needed to be made by 1 June 2000.[13]There was no relevant correspondence in May, but on 27 June 2000 the Council wrote stating that the information that they had before them indicated that there was no valid application as Brock did not have a valid interest in the site. That was disputed by Brock. That issue was not resolved without resort to legal proceedings which were disposed of in November 2001 with the result that the Council accepted that Brock had an appropriate interest.[14]Notwithstanding the dispute as to the interest of Brock, the Council proceeded with the application and on 17 July 2000 they determined the conditions to be applied.[15]On 27 November 2000 Brock appealed to the Secretary for State for the Environment, Transport and the Regions against the conditions that had been determined by the Council. It was at this stage that the issues that are the subject of these proceedings surfaced. It is not clear how or why, but I expect that someone familiar with Schedule 13 looked again at the correspondence and gave legal advice.

The Dispute

[16]Brock contended that its application had been made on 28 February 2000 and that there had been no decision by the Authority within three months thereafter. It followed, pursuant to paragraph 9(9), that the Council were to be treated as having determined that the conditions were those specified in the application.[17]The Council contended that the application sent on 28 February had omitted details and that a request had been made for further details in their letter of 30 March. It followed that the period did not run from 28 February 2000 but from 20 April when those details were supplied. That raised an issue as to whether the letter of 28 February was a complete application and whether the letter of 30 March was an application for details within paragraph 9(10).[18]The Council also contended that there was agreement in writing to extend the time until 30 July. They relied upon the letters of 30 March and 20 April. That Brock disputed.[19]The Council put forward an alternative submission. If under paragraph 13 the conditions attached to the application letter of 19 February were those deemed to have effect, the court should not in its discretion make a declaration to that effect. They went further and submitted that the court should declare that the conditions were those determined by the Council on 17 July. They submitted that it was established law that a determination of conditions such as those required under Schedule 13 was subject to the requirements of supply and consideration of an environmental assessment as required by the Directive. Even though the relevant regulations did not at that time require such a statement to be provided and considered, the court had a duty to ensure that the European Union law was complied with. The Council had done just that in its determination of the 17 July which until quashed was effective.

The Judgment

[20]The judge concluded that the application was made when the letter of 28 February 2000 with its enclosures was delivered to the Council offices on that day. He reasoned that it was a valid application as the letter of 28 February 2000 satisfied the requirements of paragraph 9(2), notwithstanding that the environmental statement was not supplied until 2 March. To conclude otherwise would have frustrated Brock’s intention as the cut off date was 29 February. He went on to hold that the period of a month set out in paragraph 9(9) ran from 28 February 2000.[21]The judge then had to consider whether the letter of 20 March was a request for further details. He said:
“35. I do not think it was. First, it did not purport to be any such thing. It was misplaced reliance upon the 1999 regulations which did not apply to this application. Secondly, the request for copy documents and a statement of copying charges do not seem to me to be ‘details’ of the type envisaged by paragraph 9(10). While I would not be inclined to support Mr Gilbart’s submission that the relevant ‘details’ must be confined to details about the matters contained in paragraph 9(2), I cannot see that a request for materials of the type sought here constitute ‘details’ in the relevant sense. In short, I agree with Mr Gilbart that a request for copies of documents already provided and information about further copies for others does not amount to a request for ‘details’ of the documents provided.”
[22]The judge went on to consider whether there had been an agreement in writing to extend the time as provided for in paragraph 9(9). He answered that question in the negative. He said:
“36. I believe the answer to this question is, ‘No’. The letter of 20 April was a clear refusal of an extension. It says so in terms. Brock was insisting upon the start of the three month statutory period being from the date of the application. If, as I have held, that date was 28 February 2000, the refusal of the extension takes the matter no further. If, however, the date of the application was 20 April, again the matter is taken no further. The expiry date would then be three months from 20 April, not because there had been an agreement to extend the period but because, without any extension, that would be the statutory period under paragraph 9(9).”
[23]The judge also rejected the Council’s submissions that the court should not in its discretion grant the declaration sought by Brock. He also rejected the submission that the Council’s determination of 17 July 2000 was effective unless challenged by judicial review procedure and in any case was the only determination that complied with European Law.

The Appeal

[24]Before considering the Council’s submissions based on the Directive, it is appropriate to consider the issues between the parties as to the effect of the correspondence.[25]Did Brock make a valid application on 28 February 2000? The application delivered to the Council on 28 February 2000 contained all the details required by paragraph 9(2) and therefore appeared on its face to constitute a valid application made within the time specified by the Council. That was the conclusion reached by the Council as they stated in their letter of 30 March:
“I acknowledge that the main submission complies with MPG14 and Schedule 13 of the Act; was received by the local planning authority on 29 February; and therefore despite what I have to say below has prevented the permissions lapsing.” … “While therefore I accept that you have protected the permissions by your submission, you have not provided the documents which will allow me to deal with this application as required by the law.”
[26]Mr Fraser QC who appeared for the Council submitted that the documents supplied on 28 February did not constitute an application as required by the law as an environmental statement should have been included. It followed that the application was not validly made until the environmental statement was provided on 2 March. He realised that that led to the unattractive position that the planning permissions would have lapsed as there had been no valid application within the one month required by paragraph 9(10). To avoid that he submitted that it was possible to extend the time and that that had been done. In the alternative he submitted that the 28 February letter was an application as required, but was not complete until the environmental statement was provided on 2 March.[27]The judge rightly concluded that Brock had made an application on 28 February in accordance with the requirements of paragraph 9 (2). Thus the time started to run from 28 February. To conclude otherwise would not give effect to paragraph 9(2) which sets out what the application should contain. Paragraph 9(10) contemplates that further details of the application may be needed and that, provided that they are sought within one month of the date of the application, time under sub-paragraph (9) does not start until they are provided. In any case to conclude that the application was not valid would be to disregard the view of the Council expressed in their letter of 30 March.[28]I reject Mr Fraser’s submission that the use of the word “comprises” in the letter of 28 February suggested that Brock considered the application was not complete until the environmental assessment had been supplied. If that was so, the application would have been out of time in that it had to be in by 29 February. It cannot have been Brock’s intention to submit the application on 2 March which was the date when the environmental statements were supplied. I also reject Mr Fraser’s submission that there had been an extension of time. If there were to be an extension of time it would have to have been made under paragraph 12 and to have been made in writing. There is nothing in the correspondence which suggests that the time for making the application had been extended from 29 February to 2 March.[29]In short Brock intended to make the application within the specified time, albeit right at the end of the period. The details set out in their application complied with paragraph 9(2) and it was therefore a valid application. The Council so viewed it and there is nothing in the correspondence to suggest that the time had been extended.[30]Did the letter of 30 March amount to a notice under paragraph 9(10)? Having regard to the conclusion that the letter of 28 February 2000 was a valid application and that there was no extension of the one month period which was possible under paragraph 9(10), the letter of 30 March could not constitute a valid notice to Brock that further details were required as it was out of time. There appears to be no answer to this point as I cannot see how it could be said that the parties agreed in writing to any extension in time. It is therefore not necessary to go on and consider whether the letter of 30 March could, if it had been written in time have been a proper notice requiring further details. However I would have been inclined to accept that it would have constituted a notice requiring further details in that it requested details of where further copies could be obtained and the cost. That information was necessary to enable the Council to produce the relevant public notices that were required.[31]Was there an agreement in writing to extend the three months period laid down in paragraph 9(9)? The parties accept that the agreement in writing to extend time, if there was one, had to be made in the letters of 30 March 2000 and 20 April 2000.[32]It is not in dispute that until sometime in 2001 both parties believed that a valid application had been made on 28 February. They also believed and acted on the belief that the sub-paragraph (10) three month period would end on 20 July 2000 as stated in the Council’s letter of 28 April 2000.[33]Brock supported the conclusion and reasoning of the judge in paragraph 36 of his judgment. Counsel drew to our attention the requirement in paragraph 9 (9) that the agreement had to be in writing; that the letter of 20 April clearly refused the requested six months extension and made it clear that the statutory period of three months had to be adhered to. It was, he submitted, not possible to convert a mistaken view as to when that statutory period expired into an agreement to extend the period. There was, he submitted, no meeting of minds as to whether the time laid down in paragraph 9(10) would be extended.[34]The Council submitted that we should read the letters of 30 March and 20 April against the background facts. Both Brock and the Council believed that an environmental statement had to be provided and that the law required consultation on that statement and consideration of the representations of consultees. The parties knew that four copies of the environmental statement were supplied on 2 March and a further ten copies with the letter of 20 April. That letter also supplied the necessary information as to how the public could get copies that enabled the consultation to take place. Upon Brock’s submission in this Court the statement period ran out at the end of May, about a month after the letter of 20 April. It is only if the three month period were extended could there have been compliance with the Directive.[35]On behalf of the Council it was also submitted that we were entitled to take into account the conduct of the parties after 20 April. If that be right then there is no dispute that both parties worked on the basis that the three months period laid down in sub-paragraph (10) expired at the end of July.[36]In my view the Council are right. When construing the letters of 30 March and 20 April the court should take into account the framework in which they were written and the way that the parties conducted themselves thereafter. The letter of 30 March requests further copies and information necessary for the consultation period to begin. It states:
“on receipt of the above the three months allowed for determination will begin.”
It went on to request an extension of the period to six months. By the letter of 20 April 2000 Brock provided the extra copies of the environmental statement and the information requested. The letter stated that “we are not prepared to grant an extended period for determination to at least six months, which you have requested …” In so doing Brock were making it clear that the 6 month period was not acceptable . The letter went on to explain why that was and concluded “our position remains that the three months statutory period in accordance with the requirement of the 1995 Environment Act must continue to apply to this application”. That made it clear that Brock wanted the three month period specified in sub-paragraph 9, not an extended period of six months, but it does not spell out when that statutory period should end. There were two alternatives: the 28 May (three months from 28 February) or 20 July (three months from 20 April).[37]The subsequent conduct shows that Brock and the Council believed that the statutory three months period would expire on 20 July. That is consistent, and I believe only consistent, with Brock’s acceptance of the statement by the Council in their letter of 30 March that “on receipt of the above the three months allowed for determination will begin.” The reply of 20 April when read in context refuses an extended period of six months, but accepts that the statutory period should be the 3 month period referred to in the statute starting with the 20 April .It follows that the Council’ determination was in time.[38]The conclusion that the time for determination of the conditions was extended by agreement between the parties until 20 July means that there is no need to consider the effects of the Directive nor the Council’s submissions on discretion. However they were argued and I will indicate my views.[39]Before considering the submissions of the parties on the Council’s alternative case, it is appropriate to summarise the factual basis for them.[40]The Council gave Brock until 29 February to make the application and Brock supplied it on time. Three copies of the environmental statement were supplied on 2 March. A request for ten further copies was made on 30 March and they were supplied on 20 April. On the assumption necessary for consideration of these submissions, the 3 month period set out in paragraph 9 (9) expired at the end of May without a decision by the Council. Thus the conditions to be applied were those sent by Brock in February. However the Directive required Member States to adopt measures necessary to ensure that before consent was given to projects of the type being considered in this case, an assessment as to the effect of the project should be carried out. At the relevant time the transposing provisions for the Directive were the Town and Country (Environmental Impact Assessment) (England and Wales) Regulations 1999. Those Regulations did not require an environmental statement on applications under Schedule 13. That failure to implement the Directive has been remedied by regulations that came into force on 15 November 2000, but they did not apply to Brock’s application.[41]On behalf of the Council it was submitted that the judge had been wrong to exercise his discretion so as to grant a declaration that the Council should be treated as having determined that the conditions were those proposed by Brock. I accept that the grant of declaratory relief is discretionary, but I can see no reason why, upon the facts being assumed, that a declaration should not have been granted in this case. The conclusion reached by the judge was binding between the parties and there would not appear to be any reason why that conclusion should not be included in a declaration. The fact that a third party could challenge the conditions, relying upon the Directive, in my view is not sufficient. Further I can see no reason why the judge should refuse declaratory relief because no application had been made to quash the determination of the Council on 17 July.[42]The second submission on behalf of the Council raised an interesting question of European law. The parties accept that under European law the determination of conditions under Schedule 13 should be subject to proper consideration of an environmental statement as provided for in the Directive. It is also a principle of European law that Member States are required to nullify the unlawful consequences of a breach of community law. That being so, the Council submitted that the only valid determination was that made by the Council on 20 July and the court should so declare. Brock accepted that the Directive applied, but submitted that under European law a creature of the State, such as the Council, could not rely upon a failure to implement the Directive against a claim by an individual such as Brock.[43]In support of that submission we were directed to passages in the judgements in R v Durham County Council ex parte Huddleston (2000) 1 WLR 1484. In that case a company applied to revive an old dormant mining permission by registering it with the council. The company submitted a scheme of conditions but did not provide an environmental statement. Since the council were unable to determine the appropriate conditions for development within the three months of the application required under the relevant statute they considered that they were deemed to have granted permission on the company’s conditions. Mr Huddleston, who lived near the quarry, applied for judicial review of the Council’s decision, seeking a declaration that the council had failed to give effect to the Directive and that development should be suspended pending such compliance.[44]Sedley LJ who gave the first judgment concluded that the court, in the circumstances of that case, had both the power and duty to give effect to the Directive. However he said at page 1499:
“34. It was more or less common ground before us that, although in ex parte Brown Lord Hoffmann, at page 405, left open the effect of the 1985 directive on the deeming provision found in paragraph 2(6)(b) of Schedule 2, a deemed permission must also be treated as a development consent within the meaning of the Directive. … It was also common ground that the directive had direct effect, but that Durham County Council, as the local mineral planning authority and an emanation of the state, could not rely as against Sherburn on the state’s failure to implement the Directive in an adequate manner.”
Sedley LJ went on to hold that Mr Huddleston was entitled to succeed despite concluding that the order would deprive an individual of benefits gained as a consequence of the failure to implement the Directive.[45]We were also taken to R v Somerset County Council ex parte Morris & Perry(Gurney Slade Quarry)Limited [1999] P.L.C.R. 117. In that case Maurice Kay J had to consider whether certain conditions were deemed to be those determined by the Council. The judge concluded that there was no basis for construing the correspondence as an agreement to extend the time for determination of the application and there were no grounds for refusing relief. At page 132 the judge said:
“Mr Katkowski submitted that all this represents an attempt greatly to extend the principle of indirect effect. It is an argument to the effect that the MPA, as an emanation of the state, is seeking to persuade another emanation of the state (the court) to give in all but name direct effect to the Directive against a private party. In Arcaro (case C-168/95, December 16, 1996) the Court of Justice having referred to the general principle of indirect effect and Marleasing, said: ‘However, that obligation of the national court to refer to the content of the directive when interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of the law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions.’ Moreover, the English courts have themselves shown reluctance to extend indirect effect to the imposition of obligations on private parties. Counsels’ researches produced no example in which an emanation of the state in this jurisdiction has succeeded in imposing upon a private party an obligation by reference to indirect effect. Indeed, in a somewhat different context, in R v Secretary of State for Employment exparte Seymour-Smith [1997] 1 WLR 473, HL, Lord Hoffman warned against giving a directive ‘by an easy two stage process the very effect which the Court of Justice says it cannot have, namely to impose obligations upon an individual’ (page 478). On this basis Mr Katkowski submitted that the law presents an insuperable obstacle to the discretionary refusal of relief by reference to Community law and that, in any event, the attempt of the MPA to rely upon it is bizarre on the facts, not least because the MPA did not carry out a formal EIA in respect of its own proposed conditions, it never requested the Applicant to submit one and it is a matter of uncertainty whether it was itself obliged to undertake one (see Lord Hoffmann in North Yorkshire County Councilex parte Brown, supra, at page 459). I am quite satisfied that these submissions are correct and it would be wholly inappropriate for me to refuse relief by reference to the indirect effect of the directive in this case.”
Maurice Kay J concluded that, whilst the granting of relief may have resulted in a breach of the Directive, a refusal of relief on that basis would result in the Directive having a direct effect, which it did not.[46]Counsel for both parties referred us to passages in the opinion of the Advocate General and the decision of the court in R. (On The Application Of Wells) v Secretary Of State For Transport, Local Government And The Regions (2004) Env. L. R. 27 at 528. It is sufficient to quote these paragraphs from the opinion. “55. According to the United Kingdom government, acceptance that an individual is entitled to invoke Article 2(1) of Directive 85/337, read in conjunction with Articles 1(2) and 4(2) thereof, would amount to inverse direct effect directly obliging the Member State, at the request of an individual, such as Mrs Wells, to deprive another individual or individuals, such as the owners of Conygar Quarry, of their rights.56. As to that submission, the principle of legal certainty prevents directives from creating obligations for individuals. For them, the provisions of a directive can only create rights ( see Case 152/84 Marshall (1986 )E.C.R.,para.723, para. 48 ). … …57. On the other hand, mere adverse repercussions on the rights of third parties even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned …58. In the main proceedings the obligation on the Member State concerned to ensure that the competent authorities carry out an assessment of the environmental effects of the working of the quarry is not directly linked to any performance of any obligation which would fall, pursuant to Directive 85/337, on the quarry owners. The fact that mining operations must be halted to await the results of the assessment is admittedly the consequence of the belated performance of that State’s obligations. Such a consequence cannot, however, as the United Kingdom claims, be described as inverse direct effect of the provisions of that directive in relation to the quarry owners.”[47]On behalf of the Council it was accepted that the authorities did contain statements that the State could not rely upon the Directive to place obligations on an individual in circumstances where the State had not implemented the Directive by appropriate legislation. However the Council submitted that a declaration that the conditions were as determined on 17 July did not impose an obligation upon private parties. It reflected the true legal position. There was no sense in having a declaration as granted by the judge when that did not bind third parties who were entitled to require the Council to comply with the Directive.[48]The authorities seem to establish that an individual may enforce a Directive against the State when the State has not implemented the Directive. There is also support for the proposition that the courts will not impose obligations derived from a Directive on private parties. Those propositions support Brock’s submission that to disregard the rights given to Brock under paragraph 9(9) of the Schedule would, upon assumptions being made, amount to giving direct effect to the Directive against an individual. However there is force in the Council’s submission that, if the Directive can be enforced at the suit of an individual as against the Council, and therefore indirectly against Brock, it is odd that the court, in litigation between Brock and the Council, should not give effect to it. The answer may be that the Council have in their power a remedy namely that they can revoke the conditions subject to paying compensation if appropriate.[49]I am inclined to accept the submissions of Brock as it seems to me that to declare in these proceedings that the conditions determined by the Council in July 2000 are valid and binding would amount to direct enforcement of the Directive at the suit of the State. However there is no need as I have said for me to decide this point and I believe it best left to another court to come to a concluded view.[50]Because I have come to the conclusion that the three month period was extended by agreement between the parties and the determination of the 17 July by the Council was within that period, the appeal should be allowed.

Lord Justice Longmore:

[51]I agree.

Lord Justice Potter:

[52]I also agree.