Condron, R (on the application of) v Merthyr Tydfil County Borough Council & Ors [2010] EWCA Civ 534

[2010] EWCA Civ 534Case No C1/2009/0950
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Beatson J
Lower Court No. CO/10241/2008
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/05/2010
Before
LADY JUSTICE ARDENLORD JUSTICE WILSONMR JUSTICE HENDERSON
Between
THE QUEEN ON THE APPLICATION OF ELIZABETH CONDRONAppellant
Mr David Wolfe (instructed by Richard Buxton Environmental & Public Law) for AppellantMr Geoffrey Stephenson (instructed by Merthyr Tydfil County Borough Council and Caerphilly County Borough Council) for 1st and 2nd RespondentsMr Rhodri Price Lewis QC by Messrs DLA Piper for Interested PartyHearing Hearing date : 18 January 2010
Judgment
[1]This application for permission to appeal is brought by Mrs Elizabeth Condron from the order of Beatson J, dated 1 May 2009, refusing permission for Mrs Condron to apply for judicial review of four decisions to grant planning approval for the development, refurbishment and continued use of Cwmbargoed Disposal Point (“CDP”) near Merthyr Tydfil, South Wales. This application was listed with the appeal to follow if permission were granted. Mrs Condron is represented by Mr David Wolfe. As explained below, both the first and second respondents to the appeal are planning authorities for the CDP as it falls as to 80% within the area of Caerphilly CBC and as to 20% within the area of Merthyr Tydfil CBC. Both planning authorities are represented by Mr Geoffrey Stephenson. The owner of the site is Miller Argent (South Wales) Ltd (“Miller Argent”), which is an interested party in these proceedings and the third respondent to this appeal. It is represented by Mr Rhodri Price Lewis QC.[2]The principal issues arising in this application are whether paragraphs 2(e) and 10(b) of schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 (“the Regulations”), which implement the Environmental Assessment Directive (Directive 85/337/EEC) (“the EIA Directive”), apply to the permissions which she seeks to challenge. The EIA Directive was later amended by Directives 97/11/EC and 2003/35/EEC, and when I refer to the EIA Directive, I refer to that Directive as so amended. There is also an issue as to the effect of delay in commencing these proceedings. BACKGROUND The development site

BACKGROUND

[3]CDP is 23.44 hectares in area. It is about 1km north of Fochriw. Part of its eastern boundary adjoins a land reclamation site known as Ffos y Fran (“FF”). Permission was first given for the CDP in 1957. Its purpose was the receiving, processing and exporting of coal from the South Wales Coalfield. It has been in use since permission was given.[4]The National Assembly for Wales gave permission for the land reclamation scheme at FF in 2005 following a public inquiry. The objective of the FF scheme is to return land described by Mr Stephenson as “derelict, unsafe and unsightly” to community use. Open cast mining is permitted to continue there until 2022, but the site must be restored by 2024.[5]Mrs Condron submits that she raises matters of general public importance. The permissions relate to the processing of coal from FF, which is adjacent. FF is the largest open cast coal mining operation in the United Kingdom. FF is contentious, not least because the site boundary is within 36 m of people's homes. Mrs Condron lives within 500 m from the opencast site and suffers noise and dust pollution from the operation. She submits that granting the permissions in issue in these proceedings without proper assessment may well be exacerbating existing environmental problems. Effective environmental assessment is therefore essential. Some of these points are contested by the interested party, which contends that the CDP is not in a sensitive area, that the residents live 650m away from the site boundary and that Mrs Condron lives over 3 km away.[6]Miller Argent points out that no statutory bodies objected to the grant of planning permission, and that there is no conflict with the development plan. The CDP has been used for receiving processing storing and the onward transport of coal for over 50 years.[7]We are not required to consider whether the proposals have a substantial effect on the environment, but whether there is an arguable case as a matter of law that the planning authorities were required to consider the need for an environmental assessment in accordance with the EIA Directive before each of the permissions, which Mrs Condron seeks to have quashed, was granted.

The planning permissions challenged by Mrs Condron

[8]The object of the four permissions is to enable modern facilities to be built at the CDP. Taking each in turn:(1) 070250/FULL (12 July 2007) (Caerphilly CBC): this granted permission for ancillary facilities in connection with mineral extraction operations at FF. It included office accommodation, staff welfare facilities, a gatehouse, a visitor/training centre, car parking, security facilities, drainage and other ancillary operations at the CDP. This permission was expressed to expire on 1 December 2010.(2) 07/0251/FULL (12 July 2007) (Caerphilly CBC): this granted permission for the extension and refurbishment of existing operational buildings and plant at the CDP. This permission was also expressed to expire on 1 December 2010.(3) 08/0231/FULL (19 June 2008) (Caerphilly CBC): this was granted for operational development and was expressed to expire on 31 December 2024.(4) P/08/0091(3 September 2008) (Merthyr Tydfil CBC): this also was granted for operational development and was also expressed to expire on 31 December 2024.[9]Mr Stephenson informed the court that the planning officers in each borough considered whether an environmental impact assessment (“EA”) was required in respect of all four of the applications and that they concluded independently that the Regulations do not apply and that therefore no EA was required. The evidence in the appeal bundle shows that this was done in relation to 07/0250, 07/0251 and P/08/0091 at least.[10]The permissions were granted subject to conditions which have now been fulfilled. However it is common ground that six conditions in permissions (1) to (3) had not been satisfied as at the commencement of these proceedings. THE LEGISLATIVE FRAMEWORK The EIA Directive

THE LEGISLATIVE FRAMEWORK

[11]The EIA Directive embodies and promotes far-reaching and highly significant aims. It is a “fundamental instrument” of the European Union’s environmental policy: R. (Barker) v London Borough of Bromley [2007] 1 AC 470 at [3] per Lord Hope. The Court of Justice of the European Communities (now the Court of Justice of the European Union) (“the Court of Justice”) has held that “[t]he wording of the [EIA] Directive indicates that it has a wide scope and a broad purpose” (see, for example Kraaijeveld v Gedeputeerde Staten van Zuid Holland [1996] ECR 1-5403 at [31]).[12]The EIA Directive specifies the cases in which an EA must be required by a planning authority before it gives “development consent”, defined in Article 1(2) of the EIA Directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. Article 2(1) provides:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4.”
[13]It is now clear that, where outline consent is given and conditions are inserted which must be satisfied before the development can proceed, the development consent for the purposes of the EIA Directive is not finally given until all the conditions are satisfied: see R (Barker) v London Borough of Bromley [2007] 1 AC 470. Accordingly the planning authority has power to require an EA at any time before full compliance with the conditions.[14]Under the EIA Directive, if a project is “likely to have significant effects on the environment by virtue, inter alia, of [its] nature, size or location”, then (a) in the circumstances set out in Article 4(1) of, and Annex 1 to, the EIA Directive, there is a mandatory requirement for an EA before development consent is given; and (b), in other circumstances, set out in Article 4(2) of, and Annex II to, the EIA Directive, the planning authority has to consider whether to require an EA on a case by case basis or in accordance with thresholds or criteria set by the member state.[15]The EIA Directive was transposed into English law by the Regulations. These have since been amended, and, when we refer to the Regulations, we refer to the Regulations as so amended. The court must, so far as possible, interpret the Regulations in conformity with the EIA Directive: see, for example, Commissioners of Customs & Excise v IDT Card Services Ireland Ltd [2006] STC 1252.[16]In this case Mrs Condron contends that Article 4(2) of the EIA Directive applies to the CDP by virtue of Annex II, paragraph 2(e) and 10(b). It is unnecessary to set out the provisions of Article 4 or of Annex II apart from these provisions.[17]Article 4 (2) provides:
“2. Subject to Article 2(3), for projects listed in Annex II, the Member States shall determine through (a) a case by case examination, or (b) thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States may decide to apply both procedures referred to in (a) and (b).” 18. Thus Article 4(2) gives member states, within certain limits, power to define the types of projects within Annex II which will require an EA. Annex II provides in material part: “ANNEX II PROJECTS SUBJECT TO ARTICLE 4 (2) 2. Extractive industry … (e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale. … 10. Infrastructure projects ... (b) Urban development projects, including the construction of shopping centres and car parks …”
PROJECTS SUBJECT TO ARTICLE 4 (2) 19. It is not necessary to set out the provisions of the regulations transposing Article 4(2) of the EIA Directive. Paragraphs 2(e) and 10(b) of Annex II are transposed by paragraphs 2(e) and 10(b) respectively of schedule 2 to the Regulations.

(e) reads:

“(e) Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale.” 20. Paragraph 10 of schedule 2 is headed “Infrastructure Projects”
. In relation to urban development projects, Parliament added some further words to define the type of project to be subject to the Article 4(2) obligation. Paragraph 10(b) thus reads: “Urban development project, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas;..” 21. Schedule 2 contains entries which make it clear that, for the purposes of both paragraph 2(e) and 10(b), the area of the development must exceed 0.5 hectare, but that area is exceeded in this case. No party takes any point on the transposition of the EIA Directive.

DISCUSSION

[22]The first two issues concern paragraphs 2(e) and 10(b) of schedule 2 to the Regulations. It is convenient to take these issues together. Issues 1 and 2: do the permissions fall within paragraph 2(e) or 10(b) of schedule 2 to the Regulations?[23]There is little additional evidence in the bundles about the industrial installations at CDP. The officer’s report dated 26 August 2008 for P/OS/0091 states that CDP is "the point at which coal is imported from [the FF land reclamation scheme], stocked, processed and distributed by rail for onward transmission to Aberthaw Power Station.”[24]The documentation in the appeal bundle relating to the applications bears out that the industrial process carried out at the CPD is the washing and preparation of coal for distribution. The officer’s report for 07/0251 states that the processing plant at the site was partly dismantled in 1990 and that since that time mobile plant had been used. It was proposed in the application to replace this with a new main plant building, a transfer tower and hopper building connected by new conveyors and linking to the existing conveyors and transfer tower. The documentation emphasised that the CPD would continue to be used as it has been used under the extant planning consents.[25]I start with the arguments about paragraph 2(e). The obvious difficulty which the appellant has to meet is that the coal to be processed at the CDP has already been extracted from the ground by the time it arrives at the CDP, albeit from a contiguous site as some of it, if not the substantial part of it, will have been extracted from the ground at FF. Nonetheless it has not been extracted from the surface or subsoil of the CDP. There is no suggestion that the CDP forms a part of the FF land reclamation scheme and that it has artificially been treated as separate for the purpose only of making an application which does not fall within the EIA Directive.[26]Mr Wolfe submits that it is inappropriate to interpret the EIA directive (or, it follows, the transposing legislation) with a narrow textual approach. He relies on the principle, cited above, that the EIA Directive "has a wide scope and broad purpose”, a point which is emphasised by the European Commission in guidance which it has issued in a document entitled Interpretation of Definitions of Certain Project Categories of Annex 1 and Annex II of the EIA Directive at page 34. Thus, on Mr Wolfe’s submission, installations “for” the extraction of coal should be interpreted as including installations used in relation to the extraction of coal.[27]Mr Wolfe relies on a number of cases decided by the Court of Justice under the EIA directive. For instance, in C-142/07 Ecologistas en Accíon-CODA v Ayuntiamento de Madrid, the question arose whether "urban roads" were within Annex 1. They were not specifically mentioned. The Court of Justice held that the terms used in the EIA Directive, which included "motorways, express roads and roads", were autonomous concepts of Community law, which had to be interpreted in accordance with Community law. The term “express road” was defined in footnote 2 to the relevant paragraph of the EIA Directive. This referred to a definition of “express road” in an agreement made between other member states apart from Spain. The Court of Justice did not suggest that the footnote did not apply, but it held that, as the definition in that agreement did not exclude roads which ran through urban areas, “express road” could be interpreted as including an “urban road”. Thus, it held that the “urban road” in question constituted an “express road” for the purposes of the EIA Directive. This case assists the appellant to this extent: it is an illustration of the Court giving a liberal interpretation to the terms of the EIA Directive to enable it to fulfil its purpose. But the assistance which this case gives does not extend further. The Court of Justice did not seek to go beyond the specific items listed in the Annexes to the EIA Directive or circumvent any express limitation in any of those items or deprive any words in the Annexes of their contextual meaning or hold that there was some relevant Community law principle which applied to projects falling outside the literal terms of the EIA Directive. Accordingly this case does not, without more, justify reading paragraph 2(e) as if the word “for” were replaced by the words “in relation to”.[28]Mr Wolfe relies also on C-2/07 Paul Abraham v Région wallone. In this case the Court of Justice interpreted the expression “construction …of airports with a basic runway length of 2,100m or more” in paragraph 7 of Annex 1 to the EIA Directive as including the restructuring and widening of an existing runway at an airport which already exceeded 2,100m. The Court of Justice applied its earlier decision in Kraaijeveld and held that modifications to an airport were within the provision for the “construction of airports”:
“32. The Court has frequently pointed out, however, that the scope of Directive 85/337 is wide and its purpose very broad (see, to that effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 31, and Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 40). It would be contrary to the very objective of Directive 85/337 to exclude works to improve or extend the infrastructure of an existing airport from the scope of Annex II on the ground that Annex I covers the ‘construction of airports’ and not ‘airports’ as such. Such an interpretation would indeed allow all works to modify a pre-existing airport, regardless of their extent, to fall outside the obligations resulting from Directive 85/337 and would, in that regard, thus deprive Annex II to Directive 85/337 of all effect.”
[29]This decision is indeed an illustration of the Court of Justice applying a purposive and not a literal interpretation to the EIA Directive, but in my judgment the decision does not assist the appellant. The case for including modifications to an airport was compelling. If that interpretation was not adopted, then a coach and horses could be driven through the EIA Directive. That is not the position with "surface industrial installations for the extraction of coal" in paragraph 2(e). Paragraph 2 contains a list of different mining operations, such as open-cast or underground mining. Paragraph 2(e) is an auxiliary provision supplementing each of sub-paragraphs (a) to (d). It is not until paragraph 2(e) that installations are mentioned. They are of course the only visible sign of underground mining and must be subjected to the EIA Directive if its scope is to be anywhere near comprehensive in the context of mines. It is, therefore, logical to include "Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale" in the context of paragraph 2. There is no compelling reason, such as there was in Abraham, for extending surface industrial installations to include surface industrial installations which are merely connected with one of the products of mining mentioned in paragraph 2(e). If that extension were read into paragraph 2(e), its effect might then prove to be extremely wide. For instance, oil stored in oil tanks far away from an oilfield might then fall within paragraph 2(e). Some weight must also be given to the inclusion of the word “surface” as qualifying installations. It seems to me to confirm that a direct link with mining operations is intended.[30]Mr Wolfe further relies on the following passage from the judgment of the Court of

Justice in C-87/02 Commission v Italy:

“44. …[T]he objective of the [EIA] Directive … is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded could , on the basis of a comprehensive screening, be regarded as not being likely to have such effects.”
[31]Reliance on this paragraph is misplaced. This paragraph is directed to the question whether a member state can under Article 4(2) apply criteria which have the effect that a project which is a project of the kind described in Annex II, is outside Annex II even if it is likely to have significant effects on the environment. The Court’s holding was not directed to the question whether a project which is outside Annex II can be brought into Annex II if it is likely to have significant effects on the environment. If that had been the object of Annex II, it would not have been necessary to have spelt out a long list of projects.[32]The judge rightly said at paragraph 31 of his judgment that the teleological approach to interpreting directives "does not require individual passages to be construed regardless of context." He went on to hold in relation to paragraph 2(e):
“39. The 0.5 hectare threshold is clearly exceeded, but it is not arguable that the activities fall within Section 2 as "extractive industry". This is because I accept the submission that the word "for" in 2(e) does not mean "in relation to". If it did it could apply to coal brought from far away and even, although the local conditions would not permit that, from abroad. In the context of Schedule 2, paragraph 2(e) relates to buildings and plants used for and an essential part of mining development referred to in previous sub-paragraphs. As far as [paragraph] 10(b) is concerned, I do not consider it arguable that this applies. The disposal point is not in an urban area. The examples given in paragraph 10(b) are of projects -- shopping centres, car parks, sports stadiums, leisure centres and multiplex cinemas -- which attract large numbers of visitors. Although there is a visitor centre within the current permissions and thus there are some visitors to the disposal point, the project has not involved either an urban area or urbanising an area that was previously rural, as was the case in the example given in the European Commission's guidance. ”
[33]Mr Wolfe criticises this passage as unjustifiably interpreting paragraph 2(e) too narrowly and also as writing into the EIA Directive a requirement that the plant in question be "an essential part of" the extraction. However, in my judgment, the judge’s interpretation is plainly correct. Paragraph 2(e) can be given meaning as it stands. It does not need to be extended as the appellant contends. The jurisprudence of the Court of Justice does not suggest that limitations appearing in Annex II should be disregarded.[34]Is the conclusion one which is so clear that it is unnecessary to refer a question to the Court of Justice for a preliminary ruling? In my judgment, the respondents are correct in their submission that the answer to this question is that the contrary conclusion is not arguable. I have regard to the fact that, if this court were to refuse the application for permission to appeal, it would be sitting as a court of final instance, which, under article 267 of the Treaty on European Union (ex art 234 of the EC Treaty), has an obligation to refer to the Court of Justice any question which is not acteclair. Nonetheless, I do not consider that there is sufficient doubt on this matter to engage this obligation. I would therefore not refer this question for a preliminary ruling to the Court of Justice.[35]As to paragraph 10(b), Mr Wolfe relies on the authorities already cited. He also relies on R (o/a Goodman) v Lewisham and The Big Yellow Property Company Ltd [2003] EWCA Civ 140. This court held that the conclusion by Lewisham that a storage and distribution facility could not constitute an urban development project within the meaning of paragraph 10(b) in Annex II was outside the range of reasonable responses. Mr Wolfe also relies on the principle stated at paragraph 8 of the judgment of Buxton LJ in Goodman that, in interpreting the scope of Annex II, the meaning in law of a word “may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions might be legitimately available.”[36]Mr Wolfe also relies on page 35 of the Commission guidance, referred to in [26] above, which appears to treat the word “urban” as qualifying the construction project, not the area in which it is located. In footnote 64, the Commission states that "…projects located within, or close to, already urbanised areas must also be considered to fall within" paragraph 10 (b). The footnote cites in support the decision of the Court of Justice in C-332-04 Commission v Spain at [87], which concerns an out of town recreation centre, and so does not appear to take the matter further so far as this appeal is concerned.[37]Accordingly, on Mr Wolfe’s submission, contrary to what the judge held at paragraph 39, set out above, there is nothing in paragraph 10(b) which means it only applies where there is a large number of visitors, nor does it depend on the project being in an urban area or urbanising an area that was previously rural.[38]Mr Stephenson submits that, as the CDP is away from any settlement, it cannot be described as an urban development project.[39]In my judgment, the judge was again plainly correct. It is a necessary requirement of paragraph 10(b) that the project be “urban”. Some of the features of the development, such as the visitors’ centre and car parking, occur in an urban or city environment, but in this case these are features of an industrial development in a rural setting. The Commission guidance is dealing with projects that are urban even if situated in a rural area. One of the examples which it gives is sewerage networks. But the CDP is not urban in this sense. It does not form part of some conurbation or settlement or provide the setting for an activity provided for the direct benefit of the community. The CDP is provided for the benefit of the coal and energy industries.[40]Paragraph 10(b) does not therefore apply, and the position in my judgment is again acte clair. It is not necessary on this appeal to rely on the authorities, such as the passage cited above from Goodman, which deal with the interpretation of terms which include an element of planning judgement.[41]I would add that the authorities show that a national court of final appeal is not obliged to refer every new point to the Court of Justice. It need not do so if, assessing the matter from the standpoint of European Union law, it considers that the correct interpretation of a directive leaves no scope for reasonable doubt as to the manner in which the question raised should be resolvedCILFIT Srl and Lanificio di Gavardo v Ministry of Health (Case 283/81) [1982] ECR 3415 . It must(1) approach the matter of interpretation in accordance with the principles of European Union law;(2) bear in mind that there are equally authentic different language versions of the directive, and(3) bear in mind that words may have autonomous meanings in European Union law. I have approached the question of interpretation of paragraphs 2(e) and 10(f) with assistance of the jurisprudence of the Court of Justice, which is how the courts of other member states would also approach the matter. The parties did not take us to any other language version of the EIA Directive, but my own review of the French version does not suggest any material difference in the text. The relevant expressions do not have autonomous European Union law meanings.[42]In a footnote to a list of possible questions which this court might refer to the Court of Justice submitted at the court’s request after the end of the hearing of this appeal, Mr Wolfe suggested that this court might have an obligation of its own motion to consider whether other paragraphs in Annex II to the EIA Directive might apply. No specific paragraphs were mentioned but after circulation of the judgments of this court in draft Mr Buxton wrote a letter to the court referring to three further provisions in Annex II (followed up by a further letter). The solicitors for the Interested Party helpfully responded to Mr Buxton's letter. If these provisions had been serious candidates for the consideration of the court, they should have been brought to the court’s attention at the due time, which if not in the court below is at the hearing of the appeal or certainly before the judgments of the court have been circulated. It is not a proper use of draft judgments to treat them as the opportunity for launching new issues that could easily have been raised at an earlier stage: see R (o/a Edwards) v Environment Agency [2008] UKHL 22 at 66. The court is not obliged to deal with points raised in this way, and for the reasons given in paragraphs 79 and 104 of Cooper v Attorney General [2010] EWCA Civ 464, there is no obligation on this court under European Union law to take a point which a party has elected not to take at the due time. I would also reject the suggestion made by Mr Buxton that the reference in my judgment to Cooper involved procedural unfairness to Mrs Condron, especially as he took full opportunity after circulation of the judgments to make his points on that authority.

Issue 3: effect of the delay in bringing these proceedings

[43]The time limits for bringing judicial review proceedings in England and Wales are (so far as material) contained in CPR 54.5(1) and (2), which provide as follows: 54.5 Time limit for filing claim form(1) The claim form must be filed— (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.(2) The time limit in this rule may not be extended by agreement between the parties[44]These proceedings were not commenced until 28 October 2008. This date is within seven weeks of the grant of permission (4). In relation to the other permissions, the application was launched more than three months after they had been granted, but before they had become unconditional. Mrs Condron submits that the decision of the Court of Justice in Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR 1-723 permits her to bring these proceedings at any time before the conditions are satisfied.[45]Wells v Secretary of State for Transport, Local Government and the Regions concerned an old mining permission, that is, a mining permission deemed to have been granted under Part III of the Town and Country Planning Act 1947 and subjected by statute in 1991 to the consideration of further conditions. In Wells, the original permission had been given in 1947. In 1994 certain conditions were imposed but following an appeal these were revised in 1997, leaving some conditions to be determined subsequently. The applicant expressed the wish to challenge the lack of an EA at the time of the 1997 decision shortly before the new conditions were finally determined in 1999. The Court of Justice held that, in some circumstances at least, a planning authority must consider whether an EA is required in connection with stages in the planning process subsequent to the grant of planning permission, such as the approval of conditions. Those circumstances could include the situation where at the time of the grant of the outline planning permission the requirement for an EA had been overlooked. The national courts have an obligation to take within the sphere of their competence all the general and particular measures necessary to ensure that the projects are examined in order to determine whether they are likely to have significant effects on the environment and if so to ensure that they are subject to an EA.[46]In Wells, it was argued that Mrs Wells should have brought her challenge earlier. The Court of Justice dismissed this argument and held that she could bring her challenge to the 1997 decision at any time before the final stages of the planning process were completed (1999). The Court of Justice approached the matter on the basis of legal certainty, and without referring to questions of time limits:
“The period that elapsed between the decision determining new conditions and Mrs Wells’ request that the situation be remedied 59. The United Kingdom government further submits that the considerable period which has elapsed since the decision determining new conditions in 1997 renders revocation of that decision contrary to the principle of legal certainty. The claimant in the main proceedings should have challenged the decision in due time before the competent court. 60. As to that submission, the final stage of the planning consent procedure was not completed when the claimant in the main proceedings submitted her request to the Secretary of State. It cannot therefore be contended that revocation of the consent would have been contrary to the principle of legal certainty. 61. Accordingly, the answer to the fourth and fifth questions must be that, in circumstances such as those of the main proceedings, an individual may, where appropriate, rely on art 2(1) of Directive 85/337, read in conjunction with arts 1(2) and 4(2) thereof.”
[47]However, as this Court explained in Cooper v Attorney General at [94], there may be an inherent conflict between this passage, which appears to take no account of time limits for challenging the original decision, and what the Court of Justice went on to say about remedying the failure to carry out an EA. It is well-established that limitation periods are a matter for national law and within the procedural autonomy of the member states, provided that national law complies with the principles of equivalence and effectiveness. Mr Wolfe does not suggest that the time limits for judicial review contravened the principles of equivalence and effectiveness. The relevant further passage in the judgment of the Court of Justice specifically preserves the procedural autonomy of member states and in these terms`: “The third question: the obligation to remedy the failure to carry out an environmental impact assessment 62. By its third question, the referring court essentially seeks to ascertain the scope of the obligation to remedy the failure to carry out an assessment of the environmental effects of the project in question. 63. The United Kingdom government contends that, in the circumstances of the main proceedings, there is no obligation on the competent authority to revoke or modify the permission issued for the working of Conygar Quarry or to order discontinuance of the working. 64. As to that submission, it is clear from settled case law that under the principle of co-operation in good faith laid down in art 10 EC (formerly art 5 of the EC Treaty) the member states are required to nullify the unlawful consequences of a breach of Community law (see, in particular, Humblet v Belgian State Case 6/60 [1960] ECR 559 at 569 and Francovich v Italy Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 (para 36)). Such an obligation is owed, within the sphere of its competence, by every organ of the member state concerned (see, to this effect, Germany v EC Commission Case C-8/88 [1990] ECR I-2321 (para 13)). 65. Thus, it is for the competent authorities of a member state to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment (see, to this effect, Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland Case C-72/95 [1997] All ER (EC) 134, [1996] ECR I-5403 (para 61) and the WWF case (para 70)). Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the member states, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337. 66. The member state is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment. 67. The detailed procedural rules applicable are a matter for the domestic legal order of each member state, under the principle of procedural autonomy of the member states, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see to this effect, inter alia, SCS Peterbroeck Van Campenhout & Cie v Belgium Case C-312/93 [1996] All ER (EC) 242, [1995] ECR I-4599 (para 12) and Preston v Wolverhampton Healthcare NHS Trust, Fletcher v Midland Bank plc Case C-78/98 [2000] All ER (EC) 714, [2000] ECR I-3201 (para 31)).”48. It may be that the facts of Wells provide a basis for reconciling the earlier passage that I have cited from the judgment of the Court of Justice from the later passage which I have cited. On the facts, the quarry in Wells was not in operation and could not resume operations until the conditions had been fulfilled. The High Court made an order for a reference for a preliminary ruling from the Court of Justice. I have been unable to find any report of any judgment given when that order for reference was made. None of the questions contained in the order of the reference relate to the time limits for judicial review. It may be that the question of time limits had not been raised at the time of the order of the reference or that, given that there would be no prejudice to the owners in terms of interrupting the operations of the quarry, it was considered that the case was one in which it would have been appropriate to grant an extension of time for bringing proceedings for judicial review.49. Mr Stephenson submits that the respondents complied with their obligations to advertise the applications and to post notices. There will, on his submission, also be substantial prejudice to Miller Argent if it has to stop using the lorry maintenance facility, the offices and a new visitor centre, constructed no doubt at considerable cost. He submits that the fact the appellant did not see the notices is not a good ground for extending time for bringing these proceedings.50. Mr Stephenson submits that the application was not filed promptly and is outside the three-month time limit in CPR 54.5(1), save only with respect to P/08/0091, which is dated 3 September 2008. He relies on Finn-Kelcey v Milton Keynes Council [2008] EWCA Civ 1067. In that case, planning permission was granted for a windfarm, subject to certain conditions, on 14 January 2008. The applicant did not commence his judicial review proceedings until 10 April 2008. The judge refused to grant permission on the grounds of delay as well as on the claim's lack of substantive merit. In relation to delay, he stated that the claim had not been made promptly, contrary to CPR 54.5(1). The claimant appealed. This court dismissed the appeal. The existence of the three-month time-limit was not to be seen as what was 'prompt' in an individual case. It emphasised the need for swiftness of action. What satisfied the requirement of promptness would vary from case to case. The need for promptness in challenging planning decisions within that policy framework was particularly acute and delay in challenging decisions in respect of renewable energy projects was more than usually prejudicial to good administration. In particular, at [29] Keene LJ held: “[Failure to comply with CPR 54.5(1)] of course, is not necessarily the end of the matter. There may be considerations which mean that it is in the public interest that the claim should be allowed to proceed, despite the delay and the absence of any explanation for that delay. If there is a strong case for saying that the permission was ultra vires, then this court might in the circumstances be willing to grant permission to proceed. But, given the delay, it requires a much clearer-cut case than would otherwise have been necessary.”51. Mr Stephenson submits that this more stringent test applies in the present case. Moreover, there would be no point in challenging the decision of Merthyr Tydfil CBC on its own.52. The judge held that it was not necessary to deal with delay. He added that, had he done so, he would have held that the delay would in itself have justified the refusal of permission (judgment paragraph 55). As to the question whether there was a continuing obligation in European Union law to remedy the failure, he considered there was no breach of the obligation to provide access to a review procedure (Article 10a of the EIA Directive) as there was nothing to suggest that access to a review procedure such as judicial review could not be subject to a time limit. The court was entitled to conclude that time should not be extended unless the claim was clear cut (citing Keene LJ in Finn-Kelcey at [29]). For an extension of time there had to be a strong claim and it had to be in the public interest that the claim should be allowed to proceed notwithstanding the delay and the absence of explanation.53. In all the circumstances it is likewise not necessary for me to deal with the question of delay. However, in my judgment, the position as regards the Wells point is as follows. As I have said, there may be an inherent conflict within the decision of the Court of Justice in Wells. The Court of Justice has failed to take a clear position. However, it seems to me that the following points should be made. First, it is an inevitable result of having limitation periods that the claims of certain claimants will be barred. Secondly, regard must be had to the purposes of the EIA Directive. As the recitals make clear, the principal purposes of the EIA Directive are to improve decision-making in planning matters, to ensure that environmental considerations are brought into account at an early stage and to harmonise the requirement in the member states for an environmental assessment. The EIA Directive establishes European Union-wide standards in these matters. By amendment, members of the public were given the right to have access to a review procedure to enable them to challenge the legality of decisions made by planning authorities about EAs (Article 10a). However this right given to members of the public is clearly a subsidiary aspect of the EIA Directive and there is nothing expressly to suggest that members of the public should be enabled to take steps designed to lead to the invalidation of decisions when they can no longer be challenged under domestic law. Thirdly, any remedies must as a general principle be proportionate to the aim that is to be achieved. Accordingly a balance has to be drawn between the interests of the applicant and the developer and it may be disproportionate to allow a challenge at a late stage when considerable expenditure and management resources have been incurred in meeting the conditions. Fourthly, there are the points on the facts of Wells which may well have justified an extension of the domestic time limit in any event.54. As to Finn-Kelcey, this case does not deal with Wells and so cannot resolve the difficulty arising from the decision of the Court of Justice beyond showing that the very experienced judges and counsel in that case thought that the time limits for judicial review applied. In Barker, Lord Hope at [29] notes, obiter, that: "It is no longer possible to challenge the grant of outline planning permission on the ground [that] an [EA] was required at the outline stage". Mr Stephenson fairly accepts that there is no indication in this passage that Lord Hope had Wells in mind when he made this observation, and so I do not rely on it as a considered view on the application of judicial review time limits in a challenge to the grant of conditional planning permission, for want of consideration of the need for an EA, which is made before the conditions have been satisfied.55. I therefore entertain considerable doubt whether Mrs Condron would be entitled by virtue of the decision of the Court of Justice in Wells to bring a claim for judicial review in this case, but I need not express a final view on this point.56. In the circumstances, it is inappropriate to make any reference to the Court of Justice on this point.57. I have also considered whether there should be any reference on any other point of European Union law in accordance with the draft questions submitted separately by the appellant, the respondent councils and Miller Argent after the hearing. I need not set out those further questions out as I do not consider that a reference on those points is required. In particular, I do not accept the suggestion that it is appropriate to refer any question arising out of the approval of the conditions since Mrs Condron does not seek to quash the approval of the conditions separately from the permissions or to establish that an obligation to consider a requirement for an EA arose at the stage of approving those conditions by virtue of issues raised by the material then put forward by Miller Argent. Nor is it said by her that the planning authorities had any power to rescind or revoke the permissions at any material stage. Indeed, we have not been referred to any matter which would suggest that a separate obligation to consider the need for an EA arose at the later stage of approving any condition.

Disposal of the application

[58]I would refuse permission to appeal, and dismiss the application.

Lord Justice Wilson:

[59]I agree with Arden LJ, for the reasons which she has given, that the development of CDP for which the permissions were given can be described neither as a ‘surface industrial installation for the extraction of coal’ for the purpose of para 2(e) of Schedule 2 to the 1999 Regulations nor as an ‘urban development project’ for the purpose of para. 10(b) thereof. Like her, I regard each of the two parts of the above conclusion as acte clair.[60]I also consider, like Arden LJ, that, even had either part of our above conclusion been otherwise, Mrs Condron’s delay in bringing a challenge to the first three permissions might very well have precluded a grant of permission to apply for judicial review of them (and have precipitated a discretionary rejection of any application for judicial review of the fourth permission, if prosecuted alone). Mr Wolfe relies on the fact that the first three permissions were subject to conditions which required the approval of detailed plans referable to a few discrete areas of the proposed works (such as drainage) and that such plans had not even been submitted for approval at the time of issue of the application for judicial review, with the result that (so he says) the first three permissions did not, at that stage, constitute development consents. Mr Wolfe then cites the decision of the Court of Justice in Wells v. Secretary of State for Transport, Local Government and the Regions C-201/02 for the proposition that the subsequent approval of further matters required by conditions attached to a planning consent is itself capable of constituting a development consent. But the effect of the decision in Wells was explained in R (Barker) Bromley LBC (SOS for Communities and Local Government, intervener) [2006] UKHL 52, [2007] 1 AC 470. In some cases it may not become apparent until that final stage of approval of reserved matters that the project is likely to have significant effects on the environment and that the development is therefore “EIA development” within the meaning of Regulation 2(1): per Lord Hope at [24]. Had the present been such a case, there would have been no relevant delay on the part of Mrs Condron. But it is not such a case: for Mr Wolfe did not and could not argue that the specified matters of which approval remained outstanding pursuant to the three permissions had any potential significance in environmental terms. Had there been any need for an EA, it would have been apparent at the time up to when the permissions were first granted.[61]But the main purpose of my short judgment is, with respect to Arden LJ, to dissociate myself from her suggestion, at [44] and [51], that there may be an inherent conflict within the decision of the Court of Justice in Wells. In Barker Lord Hope made no such suggestion; nor did counsel appearing before us. Arden LJ suggests that the inconsistency is between [59 – 61] of the decision in Wells, which she cites at [43] above, and [62 – 67], which she cites at [44] above. For my part, I detect no sign of inconsistency between the court’s statement in the first set of paragraphs that, on the facts of that case (not fully presented), the pendency of reserved matters saved the application from defeat on grounds of delay and its delphic utterances in the second set of paragraphs about the extent of the remedial obligation placed upon States by Directive 85/337/EEC in relation to projects already implemented which are later seen to have required an EA. Mr Justice Henderson:[62]Since it is unnecessary to our decision to do so, and since the decision of the Court of Justice in Wells seems to me to give rise to several potential difficulties of interpretation, only some of which have been resolved by the House of Lords in Barker, I prefer to express no view on the question whether there may be an internal inconsistency in the judgment of the Court of Justice in that case. Subject to that observation, I agree with the reasoning and conclusion of Arden LJ. I also agree with paragraphs 57 and 58 of the judgment of Wilson LJ.

Cited in 1 later judgment