England and Wales High Court (Administrative Court) Decisions

1. Just east of Rochdale Road at Royton within the borough of Oldham, there is a site of just under 9 acres which was at one time used for the extraction of sand, clay and gravel. That seems to have been happening in the 1940s, but in any event on 19th February 1953 an express planning permission was granted for the getting of those minerals from this land. At that time there was some housing in the locality, but this was not as extensive as it has since become. The applicant in these proceedings for judicial review is one of the local residents. The minerals were worked in the 1950s, and perhaps thereafter, but it is agreed that none have been worked for a long time.

2. The Environment Act 1995 sought to deal with such old mineral permissions granted before 22nd February 1982, apart from those cases where permission had been deemed to be granted under an interim development order between 1943 and 1948. That latter category of even older permissions had already been covered by the Planning and Compensation Act, 1991. But both statutory regimes endeavoured to achieve a record of what permissions existed and to bring about an updating of the conditions on them, so as to reflect more modern environmental concerns and practices.

3. Section 96 of the Environment Act 1995 ("the Act") brought into effect two schedules relating to this topic. For present purposes only Schedule 13 is relevant. In broad terms, it requires the preparation by mineral planning authorities ("MPAs") of a "first list" of mineral sites in their areas. This is to be done by 31st January 1996. Such sites are to be categorised as active or dormant sites, and the list is to divide active sites into Phase I and Phase II sites. The division into those two phases relates to the date of planning permission or the predominant planning permission for the mineral extraction on the site. It is unnecessary to go into further detail on that aspect, since it is agreed that the site with which this court is concerned is a dormant site.

4. The schedule makes provision for the first list to be advertised, to the extent that notice must be given in local newspapers by the MPA of the existence of the list and of the places where it may be inspected: paragraph 5. It must also serve notice on the apparent owner of any land of interest in any mineral included within a listed site: paragraph 8. An owner of land or of any interest in a mineral not included in the first list may apply to the MPA for that land or interest to be so included, but such an application has to be made within three months of the advertisement of the list: paragraph 6.

5. If a site is not included on the list, any relevant planning permission ceases to have effect on the day following the three-month period for applications for inclusion, unless such an application has by then been made: paragraph 12(4). If a site is included, then the landowner or person with an interest in a mineral may apply to the MPA to determine the conditions to which the relevant planning permissions relating to that site are to be subject: paragraph 9(1). In the case of an active Phase I site, that application must be made within the period specified in the first list: paragraph 3(4). If it is not, any relevant permission ceases to have effect: paragraph 12(1). In the case of a dormant site, there is no period of time within which an application has to be made for a determination of conditions. Instead, it is provided that no relevant permission has the effect of authorising the carrying out of minerals development unless an application for a determination of conditions has been made: paragraph 12(3).

6. What happened in the present case was that the site east of Rochdale Road was included by the MPA in its first list as a dormant site. That list was published in about January 1996. The second respondent, Pugmanor Properties Ltd ("Pugmanor"), bought the site, and on 17th November 1997 made an application for a determination of conditions. In that application Pugmanor specified as a relevant planning permission the permission dated 19th February 1953. It also set out its proposed conditions, as is required by Schedule 13 of the Act.

7. This application was duly reported to the relevant Sub-Committee by the officers. The report indicated not only that there was heavy local opposition to the revival of mineral working on the site, but also that the Council's own planning department shared what it called "the very real environmental concerns" arising from the site's proximity to a large number of residential properties. Indeed the planning officer said in terms that if this had been a new planning application, he would almost certainly have recommended refusal. Significantly, as will be seen, he also expressed the view that if this had been a new planning application, a full Environmental Statement would almost certainly have been required under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 ("the 1988 Regulations").

8. The Sub-Committee did consider whether the permission dated 19th February 1953 was still in force but accepted the advice of its officers that it was. It proceeded, therefore, on 18th March 1998 to determine the conditions to which that permission was to be subject in accordance with Schedule 13, paragraph 9(6). The conditions so determined were numerous and undoubtedly placed considerable restraints on the working of the site. A number of them were in the form of "Grampian" conditions, so-called, requiring certain matters to be dealt with before the working of minerals could commence. Nonetheless, considerable local concern seems to have been aroused by this decision to determine the conditions.

9. The applicant now seeks to quash that decision of the Council, dated 18th March 1998. By a proposed amendment to Form 86A, she also seeks a declaration that there is no subsisting planning permission in respect of the site capable of being made subject to conditions pursuant to Schedule 13 of the Act. That proposed amendment was not opposed by the Council, but was opposed by Mr Gilbart QC on behalf of Pugmanor. I reserved my ruling on that application to amend, because the arguments raised were inextricably linked with those being raised on the substantive application and were thus best dealt with in this judgment. I shall return to that proposed amendment in due course.

10. Two main arguments are advanced by Mr George QC on behalf of the applicant. First, it is said that the 1953 permission was no longer subsisting and valid at the time when the first list was published by the MPA or when it made its determination about conditions on 18th March 1998. Consequently the authority was not entitled to determine conditions in respect of it. Secondly, it is argued that the authority acted unlawfully in failing to require an environmental assessment in accordance with the EC Directive 85/337/EEC before it made its determination on conditions. I shall take those two main arguments in turn.

11. Reliance is placed by the applicant on the statutory provisions under which a planning permission lapses if development to which it relates has not be begun by a certain date. Section 65(1) of the Town and Country Planning Act 1968 provided that:

12. In the case of mineral operations, the period of ten years was substituted for that of five years by the Town and Country Planning (Minerals) Regulations 1971, regulation 6. Since the commencement date of section 65 was 1st April 1969, the effect of these provisions was that a pre-1968 minerals permission lapsed on 1st April 1979 if development has not begun by that date. That much is not in issue. Regulation 7 of those Minerals Regulations 1971 provided that:

13. It is the applicant's case that no such mining operations to which the 1953 permission related had begun to be carried out by 1st April 1979, with the result that that permission had lapsed long before the Oldham MBC as MPA came to draw up its list of minerals sites and to consider Pugmanor's application for a determination of conditions.

14. There is, however, a preliminary objection raised on behalf of Pugmanor. Mr Gilbart contends that, at the stage when the MPA is considering an application for a determination of conditions, it is no longer open to it to decide whether or not a planning permission relating to the site is still valid. It is submitted that, once the site has been included in the first list, the MPA is under a duty to determine conditions when an application for such a determination is made. Mr Gilbart points to paragraph 9(6) of Schedule 13, which begins by stating:

15. With certain exceptions, irrelevant for present purposes, "relevant planning permission" means any planning permission granted after 30th June 1948 for minerals development: see paragraph 1(1) of the Schedule. It is accepted by Pugmanor that in drawing up the first list of mineral sites, the MPA is entitled and bound to consider whether a relevant planning permission exists, because that is a crucial part of the definition of a mineral site. "Mineral site", according to paragraph 1(1) means "the land to which a relevant planning permission relates". Mr Gilbart also accepts that at the stage of drawing up the first list, the MPA must consider whether a planning permission still subsists. If it does not, then it is not a "relevant planning permission". But he argues that, once the first list has been drawn up and advertised and the period of three months for land owners to challenge the omission of a site has expired, the MPA has no power to determine that a site was wrongly included in the list. Reliance is placed on the decision of Lightman J in R v North Lincolnshire Council ex parte Horticultural and Garden Products Ltd (1998) 3 PLR 1, when it was held that there was no implied provision in Schedule 13 whereby an MPA could entertain an application to add a site to the list once the three months had expired. The court there emphasised the purpose of this legislation of achieving certainty and finality as to the sites enjoying mineral planning permission (see page 8).

16. If that is so, submits Mr Gilbart, then it would be wrong to allow judicial review proceedings, well outside three months from the advertising of the list, to challenge the inclusion of a site in the list. That essentially is what this challenge is, a form of collateral challenge to the inclusion of Pugmanor's site on the list. The list should be seen as definitive of the relevant planning permissions.

17. This argument seems to me to misunderstand the role of the first list. It is a list of mineral sites, not a definitive list of relevant planning permissions. It is right that, at the stage of compiling the first list, the MPA has to consider whether a relevant planning permission or permissions exist in respect of a given site, but it need not identify those permissions in the list, merely whether the site is an active Phase I site, an active Phase II site or a dormant site, together with the date by which any paragraph 9 application is to be made in relation to an active Phase I site: paragraph 3. When an owner subsequently makes an application for a determination of conditions under paragraph 9, he is required at that stage to identify " any relevant planning permissions" relating to the site: paragraph 9(2)(c) -- my emphasis.

18. It is in that context that the undoubted duty of the MPA under paragraph 9(6) to determine conditions has to be seen. It is a duty to determine the conditions to which "each relevant planning permission relating to the site is to be subject." It has to be remembered that there may be more than one permission relating to the site. The MPA may not have identified them all when compiling the list. If an owner applies under paragraph 9 in respect of a site on the list, he can identify a permission or permissions additional to whatever the MPA had in mind when it included the site in the list. If this situation arises, the MPA must be entitled to consider whether such additional permissions are still valid or not. That continuing validity is part of the concept of a "relevant planning permission", since it would be absurd to require a site to be included on the list merely because of a lapsed permission. But in the same way, it would be absurd to require the MPA to determine conditions for a lapsed permission. The MPA is entitled to consider the validity of any permission alleged in a paragraph 9 application to be a "relevant planning permission" and to do so at that stage when it is dealing with that application.

19. I appreciate that, in a case such as the present where there is only one permission alleged to be relevant, a decision that that permission is no longer valid amounts to saying that the site should not have been included in the list in the first place. But that is not, in fact, the same thing as amending the list or taking the site out of it. The site would remain in the list, until the list is eventually reviewed. However strange that might seem, it is a more sensible result than depriving the MPA of the power to consider the validity of planning permissions identified in a paragraph 9 application. The MPA cannot be bound to accept the applicant's assertion that A, B and C are "relevant planning permissions" relating to the site. It has to exercise its own judgment on the matter and in so doing, it must consider any issue concerning the continued validity of any of those permissions. I therefore reject the preliminary objection raised by the second respondent.

20. I revert, therefore, to the issue itself of the validity of the 1953 permission, which turns upon whether any mining operation to which that permission related began to be carried out before 1st April 1979. This is not simply a question of whether any mining operating began physically to be carried out after the grant of that permission on 19th February 1953. A series of authorities has established the legal proposition that, for development to have been development to which a permission related, it must have been development authorised by that permission and consequently must not have been in breach of a condition on the permission. I reviewed the authorities in a recent judgment in Leisure Great Britain Plc v Isle of Wight Council (1997-L-1499; judgment 28th June 1999) and I do not propose to take time doing so again. It is enough to set out the familiar passage from the judgment of Woolf LJ (as he then was) in Whitley and Sons v Secretary of State for Wales (1992) 64P and CR 296, at 302:

21. Mr George QC on behalf of the applicant relies on those principles, and draws attention to condition 1 on the 1953 permission. That needs to be set out in full:

22. This 1953 permission was, in fact, an amended re-issue of a permission granted the previous year. The relevant committee had resolved in May 1952 to grant permission for the getting of sand, clay and gravel on the site, with a condition requiring a detailed plan and scheme to be submitted by 31st December 1952. However, due it seems to confusion arising from the division of planning responsibilities between the County Council and the then Royton UDC, no planning permission was actually issued until 6th December 1952. The authorities recognised that this left an unreasonably short period for the submission of a scheme of working, and so the fresh permission dated 19th February 1953 was issued bearing the date in condition 1 of 31st March 1953.

23. On 30th March 1953 agents for the landowner wrote to the UDC, enclosing a tracing. The tracing is no longer to be found, but the letter stated that it showed the two areas from which it was proposed to excavate sand and gravel, the area upon which it was proposed to tip waste materials and the approximate boundaries of the existing sand pits. The letter continued:

24. The response to that came the following day. The UDC Engineer and Surveyor wrote saying:

25. One notes that there was no suggestion in that reply that the further submission being indicated would be too late to meet the terms of condition 1.

26. Nothing further seems to have taken place by way of scheme details for about one year. There was then a meeting between representatives of the landowners and council officers "to discuss the drawing up of the scheme of working". The outcome of that meeting seems to have been that the officers would prepare a draft scheme for the landowners to submit if they agreed with it. Certainly a number of internal memoranda show the officers drawing up a scheme dealing with the level of working, areas of tipping, removal and spreading of top soil to a particular depth, and tree planting. This was duly sent to the landowners and a further meeting was held on 19th May 1954. The correspondence after that meeting makes it clear that the planning authority was expecting the landowners or their agents to frame their scheme of working as they thought fit and to submit it for consideration: see letter 20th May 1954.

27. Nothing had been received by 7th July 1954, when the Divisional Planning Officer wrote again to the agents, drawing attention to condition 1 on the 1953 permission and asking for the necessary scheme to be submitted. In their reply, the agents referred to the letter of 30th March 1953 and the enclosed tracing, saying that "we do not appear to have received any reply to this draft scheme." The letter ended by saying that they were working on an amended scheme, which they hoped to let the officer have in the near future.

28. No further proposals were received and by October 1954 the officers of the two authorities were discussing possible enforcement action. What apparently was contemplated was a notice under which the sanction would be the authority preparing the scheme and recovering the cost. It seems that an enforcement notice was duly served on 10th November 1955, but a copy of the notice itself can no longer be found. It seems from the UDC records that it required compliance with the conditions on the permission. Not long afterwards, on 24th January 1956 the agents wrote to the UDC, referring to their original "draft scheme" and proposing a meeting to discuss a proposed scheme. A further letter from them, dated 16th February 1956, stated that they were not in full agreement with the scheme as drawn up by the planning officers but they would submit an amended version.

29. In fact, there was then a further meeting between the owner, his agent and Council Officers on 24th May 1956. A Council file note records that the discussion was about the details which should be submitted to meet condition 1, and that it was pointed out to the owner and his agent that what was in effect needed was the position when the excavation and tipping had been carried out. The owner promised to submit the necessary details within 14 days. The correspondence indicates he did not do so, but on 22nd June the agent brought plans and proposals based on the Council's draft scheme to a further meeting and these were discussed at length. It seems that the full detailed scheme was expected to be submitted very soon. However, it had not been received by 24th July 1956.

30. There is then a gap in the available records for over 14 years. The next letter on file is one from the agent dated 15th January 1971, asking the Divisional Planning Office whether or not the 1953 permission was still valid. The letter went on to say that "the workings would be executed in accordance with the plan prepared by your department" (emphasis added). A file note from the planning department's files records that a planning officer "persuaded" the agent that the permission was not valid because a scheme had not been submitted within time.

31. None of the parties to these proceedings have been able to discover anything further to indicate that a full scheme under condition 1 was ever submitted, beyond those documents to which I have already referred, nor any approval by the planning authority of such a scheme, beyond the degree to which those documents and events can be construed so as to amount to an approval. It is right that, at a much later planning inquiry in 1986 into a residential proposal for the site, the Oldham MBC, by then the planning authority, accepted that the 1953 permission was still valid, but it is unclear on what basis they did so and it is not suggested that that acceptance creates any kind of conclusive finding to that effect.

32. On the basis of this history, Mr George submits that any mineral operations carried out after the date of the 1953 permission were in breach of condition 1. In the light of the planning authority's willingness to see a scheme submitted after the specified date of 31st March 1953, he does not argue that condition 1 could not have been met by an approval of a scheme after that date. But he relies on that part of the condition which states:

33. It is contended on behalf of the applicant that there never was an approved scheme under condition 1, and in consequence any mineral operations on site were no more authorised by the permission than those operations which had preceded it.

34. On behalf of the planning authority, Mr Sauvain QC emphasises that this permission was one for the continuation of mineral workings as condition 1 indicates, so that the then planning authority knew that work was going on at this site. There is no condition saying that working must stop until a detailed scheme is approved. The condition is not drafted in such terms as "No development shall be carried out until a scheme has been approved". The authority merely set a date in the future for the submission of such a scheme. Consequently, he submits, work could take place and did take place under this 1953 permission until a scheme had been approved. Only then would all workings have to accord with the approved scheme.

35. Secondly he contends that the landowner did comply with the first part of condition 1 by submitting the letter and tracing of 30th March 1953. That complied with some of the requirements set out in paragraphs (a) to (d) of the condition, and in particular dealt with the method of working, even if there is nothing about the finished contours or about topsoil. The draft scheme produced by the officers had only limited extra detail. By the time one gets to July 1956, it seems that a scheme had broadly been agreed and all that was lacking was the formal submission of it by the owner. Reliance is placed by Mr Sauvain on the decision in R v Flintshire County Council, ex parte Somerfield Stores Ltd (1998) P and CR 336, where it was held by Carnwath J that a condition had in substance been complied with where the relevant traffic report had been submitted by the applicant and approved by officers but the written notice of approval had not been issued by the time work began on site.

36. Both he and Mr Gilbart make the point that it is dangerous to make firm conclusions about what happened some forty-five years or so later, especially when the records indicate some confusion as between the County and District authorities. Mr Gilbart largely adopts Mr Sauvain's submissions on this topic, but he also emphasises that by the time of the meeting on 24th May 1956 all that seems to have been still outstanding were the details concerning the steps to be taken once the excavation had finished. There was no disagreement therefore about the details of the workings themselves, which were continuing and which were a start to development under the permission. Moreover, it is submitted on behalf of Pugmanor that there is a need for some flexibility to be allowed to a planning authority in the way in which it deals with the implementation of a condition: see Agecrest v Gwynedd County Council (1998) JPL 325.

37. Although Mr George argued that one could not conclude that workings were actually going on on this site during the brief period between the grant of this permission on 19th February 1953 and 31st March 1953, it seems to me that, on the balance of probabilities, some mineral operations would have taken place then, even if only to a limited degree. This was a working pit, albeit a slowly working one. In any event, his acceptance that a scheme could be lawfully submitted and approved after 31st March 1953 robs that date of any real significance. If a scheme could thereafter be submitted and be approved, the operations could take place after that date and still be authorised by the permission. There could be a start to development after that date.

38. Condition 1 is not expressed in a negative form, prohibiting operations under the permission until a scheme has been approved. Such a negative form is often used when development is not authorised until such an event, and in a number of the cases on this topic, such as Flintshire and Agecrest (ante), the court was dealing with such conditions. Indeed, if one goes back to the decision of Forbes J in Clwyd County Council v Secretary of State for Wales (1982) JPL 696, one finds some emphasis being placed by the court on such a formulation. The learned judge there approached the issue in terms of whether the breach of conditions rendered the mining operations "unlawful", because that was how the argument was being advanced by counsel. The court found that, because the conditions in question did not use expressions such as "No development shall be carried out until ..." they were not conditions precedent, and consequently failure to observe them did not make the development unlawful (page 699).

39. It will be seen from the passage cited from Whitley earlier in this judgment that the law has moved on since 1982. In Whitley, Woolf LJ, with whom the other two Court of Appeal judges agreed, rejected the approach of asking whether the conditions could be classified as conditions precedent. That, said the court, is neither necessary nor helpful. The true test is whether the operations are permitted by the planning permission read together with the conditions. "If the operations contravene the conditions, they cannot be properly described as commencing the development authorised by the permission" (page 302). I note that one of the conditions under consideration in Whitley was not expressed in the form of a condition precedent, but was somewhat similar to that part of condition 1 in the present case on which the applicant relies. Condition 2 in Whitley was that:

40. That is negative in form, but it is difficult to distinguish it from the wording of condition 1 here, namely:

41. The approach in Whitley has been followed in a number of subsequent decisions, including several in the Court of Appeal. In Handoll and Suddick v Warner Goodman and Street (1995) 1 PLR 40, the Court of Appeal relied on Whitley as supporting the proposition, which it accepted, that:

42. In Daniel Platt Ltd v Secretary of State for the Environment (1997) 1 PLR 73, the Court of Appeal again endorsed the principle spelt out in Whitley.

43. One turns, therefore, to look at the 1953 permission and its conditions, in particular condition 1. Mr Sauvain is right in asserting that the permission, read as a whole, does not seek to stop the mining operations which had been going on from before the grant of this permission. But I find his argument that the permission was, therefore, authorising those operations in some untrammelled way, until such time as a scheme was approved unpersuasive. It was inevitable for practical reasons that the permission would allow some time for a detailed scheme to be submitted. But the wording of condition 1 is quite clear. It requires all operations (my emphasis) to be carried out in accordance with the scheme as approved or modified. It does not say that, once a scheme has been approved, then the operations must accord with it, implying that there is some exempt period prior to that date, of approval during which the permission allowed any method of working to take place. It is significant that the final sentence of condition 1 demonstrates how much importance was being attached to complying with an approved scheme: even if the applicants seek to amend the approved scheme at some future date, it must be complied with until the amendments have been approved.

44. One quite accepts that the planning authority, in practice, allowed operations to continue, just as they had been continuing during the 1940s and up to the grant of this permission. But I conclude that Mr George is right when he submits that this was tolerated, unauthorised working, rather than authorised working. It did not mean that the permission authorised working outside the confines of a scheme until such a scheme had been approved or even until 31st March 1953, by when a scheme was to be submitted. There was no halfway house here. On the wording of condition 1, works done in accordance with an approved scheme were authorised by the permission; works done other than in such accordance were not done under the authority of this permission. I therefore reject Mr Sauvain's first submission on this issue.

45. I do accept, however, that, given the wording of condition 1, there could be retrospective authorisation of works carried out after the grant of this permission. That accords with the actual outcome of Whitley. In the present case, all operations have to comply with the approved scheme, but nothing in the wording of this permission and its conditions, requires the scheme to be approved first. If a scheme was eventually approved and operations had been carried out which could be seen to have been in accordance with that scheme, then that would suffice to render those operations authorised ones. That seems, to me, to be the significance of the fact that condition 1 does not, in terms, prevent operations being carried out until a scheme has been approved, but merely requires them to be in accordance with the approved scheme.

46. That gives rise to the vital question: was there an approved scheme in this case? The scheme, such as it was, submitted on 30th March 1953, was never approved. Mr George criticises that submission for its deficiencies when measured against the details required by condition 1, but the fact is that the authority allowed further and subsequent discussions, about a scheme, to take place. One is having to look, therefore, at the period after 31st March 1953, to see if a scheme was ever approved.

47. In so doing, I bear in mind the dangers inherent in interpreting documents and events so long afterwards. I also accept the approach adopted in Flintshire that, if an authority or its officers with delegated powers, approve a scheme or report required under a condition, the mere absence of formal notices will not prevent the condition from having been complied with.

48. In the present case, it is right that the local authority officers drew up a draft scheme to assist the landowner and repeatedly suggested that he submit it. On the evidence before me, he never did so. On the other hand, it seems that in due course, a considerable measure of informal agreement was reached, in the course of discussions, about what ought to go into a detailed scheme, certainly on the details of the method of working. That appears to be the implication of the file note dealing with the meeting on 24th May 1956. A lot of progress towards a detailed scheme had been made, even though at times the officers seem to have thought that the landowner was using delaying tactics.

49. Does all this amount to compliance with condition 1? I have concluded that it does not. A degree of informal agreement on what ought to go into a detailed submission falls short of such compliance, especially given the history of this site where there were repeated meetings and apparent progress and yet no submission of details then resulting. The matter can be tested by asking what would have happened if, after 1956, operations had been carried out which did not accord with the method of working discussed between the officers and the owner or his agents. Could the planning authority have brought enforcement action on the basis that there was an approved scheme under condition 1, from which scheme there had been a departure? In my judgment, they could not. They could not have successfully asserted that there was ever an approved scheme, even to the extent of the excavating operations themselves. Not merely was there no approval issued by the planning authority, but the matter never went before the relevant committee for decision. Indeed, it is difficult to see that things ever advanced to the stage of a submission by the landowner for approval, as opposed to a series of discussions about the possible content of a scheme. In saying that, I recognise that there was the earlier submission of 30th March 1953, but that clearly was never approved and the landowner took no steps to challenge the lack of approval.

50. I conclude, therefore, that none of the mining operations carried out on this site after the grant of the 1953 permission complied with condition 1 of that permission and for that reason those operations were not authorised by the permission. It follows that there never was a start to operations under that permission and that in consequence, the permission lapsed in 1979. It is no longer valid.

51. In the light of that conclusion, I propose to deal only briefly with the other main argument advanced by the applicant. There is no doubt that, in the light of the decision of the House of Lords in R v North Yorkshire County Council ex parte Brown (1999) 2 WLR 452, the determination of conditions under Schedule 13 is a "development consent" within the meaning of Directive 85/337/EEC and that the latter is directly effective. The North Yorkshire case was, it is true, concerned with conditions for "old mining permissions" under the Planning and Compensation Act 1991, but the regime established for the latter tranche of mining permissions by Schedule 13 closely follows that established for permissions under the 1991 Act. The reasoning of the House of Lords is valid and applicable to determinations under Schedule 13, and all the parties to the present proceedings accept that.

52. Article 2(1) of the directive states that:

53. Article 4 takes one to Annexes I and II to the Directive, the first of those being a list of the classes of projects where, by virtue of the Directive, there has to be an environmental assessment. That does not apply here. But according to Article 4(2), projects of the classes listed in Annex II shall be made subject to an assessment where Member States consider that their characteristics so require. One of those classes so listed is the extraction of minerals such as sand and gravel.

54. In fact, there is as yet no provision in English law which deals with the application of the Directive to the determination of conditions under Schedule 13 of the Act. The 1988 Regulations do not apply, nor does the Act itself make any such provision. Both those Regulations and the Act were passed into law before the North Yorkshire decision held that the Directive applied to a determination of conditions. But that does not absolve a local authority, which is an emanation of the state, from observing a directly applicable Directive: see Marshall v Southampton Area Health Authority (1986) QB 401; Foster v British Gas (1991) 2 AC 306. Therefore, where an MPA considers that a development project is likely to have "significant effects on the environment" by virtue of such matters as are referred to in Article 2(1), it is obliged to have an environmental assessment before consent is given.

55. In the present case, both the MPA and Pugmanor concede that an environmental assessment was required, and required before consent was given. None was, in fact, carried out before the determination of conditions on 18th March 1998. But Mr Sauvain points out that, in the absence of any domestic implementation of the Directive in this situation, it is open to the MPA to integrate environmental impact assessment into the existing procedures for consent: see Article 2(2). This, he argues, is what the MPA did here, because they imposed numerous conditions requiring more information to be supplied before mining operations could be resumed. It is contended that this is a legitimate procedure to adopt in a case such as this, where permission had already been granted back in 1953, and only the conditions of the permission are under consideration. It is on this basis that it is sought to distinguish the decision by Sullivan J in R v Rochdale MBC ex parte Tew (unreported; CO/3702/98, judgment 7th May 1999). There, the court was dealing with applications for planning permission for a proposed business park of about some 170 hectares. The court rejected an argument that some of the information required for an environmental assessment could be achieved at the later stage of considering the reserved matters required by conditions on the permission, saying that by then, it might be too late to reflect any significant adverse impacts so identified, because permission would already have been granted. The horse would already have bolted. In contrast, says Mr Sauvain with Mr Gilbart's support, on a Schedule 13, paragraph 9 determination, the principle of permission for mineral extraction has already been established. All that is in issue is what conditions should be applied to the working.

56. I can see the force of that argument and, in the peculiar circumstances of a Schedule 13 application in the current state of domestic law, I accept that it is theoretically open to an MPA to determine conditions which themselves require all the remaining information for environmental assessment to be submitted and for detailed schemes to be approved in the light of such information before the mineral operations can proceed. The issue is whether the conditions which were determined in this case do that.

57. The conditions are undoubtedly extensive and far-reaching. There are 56 in all. Many require further information and further detailed schemes to be submitted before development begins. Condition 20 requires a comprehensive site investigation into the hydrogeology of the site and adjacent land before any mineral extraction begins, so that the effects on the water table and land stability can be determined. A full working programme has to be approved covering such matters as the depth of working, the construction of noise baffle mounds and the means of dealing with surface and groundwater flows, before any mineral extraction begins.

58. The reason for this condition (Number 21) is to avoid unacceptable risk of instability and/or settlement or unacceptable noise disturbance to nearby land and properties. There are a large number of conditions directed towards establishing existing noise and vibration levels and towards achieving acceptable noise levels at residential properties. So far as dust is concerned, no development is allowed unless and until background dust monitoring has been undertaken (condition 43) and a dust action plan approved (condition 44). There is provision for a restoration scheme for the site, and all these conditions have to be seen in the context of condition 4, which puts a two-year time limit on the extraction and processing of minerals and the deposit of materials.

59. Significantly, a report prepared for the applicant in these proceedings by environmental consultants, Hyder, acknowledges that a number of issues have been adequately addressed by these conditions. Those include hydrology, geology and noise, and the impact of dust on residents. They assert that some other impacts of dust and pollutants have not been addressed, though I find that difficult to accept. But the question is whether these conditions adequately cover the matters to be covered by an environmental assessment.

60. I remind myself that such an assessment is required to identify, describe and assess in an appropriate manner the direct and indirect effects of a project on: human beings, flora and fauna; soil, water, air, climate and the landscape; the interaction between those factors; and material assets and their cultural heritage: see Article 3 of the Directive. Mr George submits that in a number of respects the conditions will not achieve what is required under the Directive, and in my judgment he is right. There is no provision in them for any assessment of visual impact of the excavation with its plant and machinery and vehicles and its associated processes. That would not matter if such an assessment had already been done, but there is none to be found in any of the reports to committee or other documents before them. Such an assessment should cover the effects on residents and others in the locality, including those using the roads and public footpaths near the site.

61. Despite the express reference in Article 3, there has been no assessment of the direct or indirect effects on fauna and flora on site or in the area, nor is one to be carried out under the conditions determined by the MPA. There has not even been an assessment of what fauna and flora currently exist on the site, including in and around the pond or ponds on site. It is perhaps symptomatic of the present lack of information that it is unclear whether there are one or two ponds on site.

62. Inevitably there has been no assessment of the interaction between these matters and the other factors referred to in Article 3.

63. Of course, the MPA was not being asked to grant or refuse planning permission for the mineral operations, but only to determine conditions. Nonetheless, its powers to impose highly restrictive conditions, including ones limiting the area to be worked, are in my view clear from paragraph 10(2)(d) of Schedule 13. While that only applies directly to active sites, it cannot have been Parliament's intention to allow more restrictive conditions in respect of active sites than in respect of dormant ones upon their re-awakening.

64. The MPA can, therefore, use conditions to limit severely the method of working, the areas to be worked, the timing of excavation and the mitigation measures to be taken. It should, therefore, ensure that it has all the appropriate information for an environmental assessment. In this case it did not, and its conditions would allow operations to begin without an adequate appraisal of all the necessary impacts. Indeed, one of the officers' reports to committee in effect recognised this, since it stated that the conditions "deal with most of the matters which an EA would have covered" (emphasis added).

65. I conclude, therefore, that the MPA acted in breach of the Directive in determining conditions without either an environmental impact assessment or provision for one in the conditions themselves. It is contended by the respondents that, in those circumstances, I should nonetheless as a matter of discretion refuse relief because nothing of significance would have emerged from such further assessment. This is, in the light of my decision on the validity of the 1953 permission, an academic issue, but I have to say that I would have found it impossible to conclude that a proper assessment would not have led to different or additional conditions. In those circumstances, I would have exercised my discretion in favour of the applicant.

66. Some interesting arguments were advanced about the situation which would have arisen, had I held the 1953 permission to be valid and subsisting but quashed it for breach of the Directive. In particular, there would then have arisen the issue of the effect of quashing on the mechanisms set out in paragraph 9 of Schedule 13, especially the provisions in paragraph 9(9) whereby, in the absence of a determination by the MPA within three months, the conditions proposed by the applicant for a determination take effect. That is not an issue which now falls to be decided and, that being so, I say no more about it.

67. I conclude that the 1953 permission is no longer valid and, both for that reason and because of the breach of the EEC Directive, the determination by the MPA dated 18th March 1998 was ultra vires and must be quashed. There remains simply the question of whether leave should be granted to the applicant to amend the relief sought, so as to seek a declaration that there is no subsisting planning permission in respect of the site, capable of being made subject to conditions pursuant to Schedule 13.

68. Given that I have dealt with the issue of the validity or invalidity of the 1953 permission in this judgment as a necessary part of the decision as to the vires of the MPA's determination of conditions, there can be no sustainable objection to its invalidity being formally declared. Since it is not suggested that there is any other planning permission relating to this site, a declaration in the terms sought is appropriate.

69. I therefore grant leave for the amendment to be made and will make the declaration in the terms sought.