R. v. Durham County Council and Sherburn Stone Company Ltd. exp. Huddleston

Transcript date:

Monday, December 13, 1999

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Richards J

Case No : CO/2880/99

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand, London WC2A 2LL

Monday, 13 December 1999

Before:

THE HON JUSTICE RICHARDS

THE QUEEN

AND

DURHAM COUNTY COUNCIL

SHERBURN STONE COMPANY LIMITED

Respondents

Ex parte

RODNEY HUDDLESTON

Applicant

(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel No: 0171 421 4040 Fax No 0171 831 8838

Official Shorthand Writers to the Court)

Applicant - Mr R McCracken instructed by Richard Buxton (Solicitors)

1st Respondent - Mr R Taylor instructed by Durham County Council Legal Dept

2nd Respondent - Mr J Findlay instructed by Aaron & Partners (Solicitors)

Secretary of State - Mr D Elvin and Mr D Forsdick instructed by the Treasury Solicitor

Judgment

As Approved by the Court

Crown Copyright ©

Monday, 13 December 1999

J U D G M E N T

MR JUSTICE RICHARDS:

In R v. North Yorkshire County Council, ex parte Brown [1999] 2 WLR 452 the House of Lords considered the relationship between the statutory regime governing old mining permissions and the requirements of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ("the Directive"). It held that a determination by a mineral planning authority under the relevant statutory provisions is a "development consent" within the meaning of the Directive and it upheld the quashing of such a determination on the ground that no environmental impact assessment had been undertaken in accordance with the Directive. Where a mineral planning authority has failed to deal with an application within the time laid down, a deemed determination arises. In ex parte Brown the House of Lords expressly left open the question whether the deeming provision might fall to be disapplied on the ground that it would enable a mineral planning authority by inaction to avoid its obligation under European law to undertake an environmental impact assessment. The effect of the Directive on the deeming provision arises for decision in the present case. Among the matters raised in argument are the implications of principles of European law that were not considered by the House of Lords in ex parte Brown.

The Government is currently examining the options for remedying the defects identified in ex parte Brown with regard to transposition of the Directive. A consultation paper was issued in June 1999. Consultation has been sought on, amongst other things, the possibility of making amending regulations so as to disapply the deeming provision where an environmental impact assessment is required. The present case is concerned, however, with the position as it exists pending the introduction of any such amending regulations.

Factual background

The second respondent ("Sherburn") had a dormant planning permission, pursuant to an interim development order, for mineral extraction at Broadwood Quarry, Frosterley, in an area for which the first respondent ("Durham") is the mineral planning authority. The permission was an old mining permission within the meaning of s.22 of the Planning and Compensation Act 1991. Since no development had been carried out at the site in the period of two years ending on 1 May 1991, s.22(3) of the 1991 Act had the effect of suspending the planning permission. In order to carry out development at the site Sherburn had to apply for the registration of the permission and for the determination of conditions to which the permission was to be subject. Under the statutory provisions, which I will set out more fully in a moment, Durham had to determine the conditions, but if notice of its determination was not given within three months of the application Durham was to be treated as having determined that the permission was to be subject to the conditions set out in Sherburn's application.

Sherburn made an application, submitting a scheme of conditions, on 15 February 1999. It had previously been warned that an environmental statement would be required for the purposes of Durham's determination of the conditions. Following the application, Durham informed Sherburn by letter of 4 March 1999 that an environmental statement was required. In line with guidance issued by the Secretary of State to the effect that there was no explicit power to require an environmental statement in this context, Durham requested Sherburn to submit a statement voluntarily within three months of the letter. Sherburn requested a direction from the Secretary of State, who confirmed by letter of 5 May 1999 that, although the regulations governing the provision of environmental statements in the context of planning permissions did not apply, an environmental statement would be required on the facts of the case if the regulations did apply. Sherburn was invited to submit an environmental statement on a voluntary basis in accordance with the "spirit" of the regulations.

Sherburn took the view that an environmental statement would not be required even if the regulations did apply. In any event it did not submit an environmental statement. On 24 May 1999 it wrote to Durham stating that because the three month period under the 1991 Act had expired without a determination of its application, the conditions set out in Sherburn's application applied (i.e. there was a deemed determination of those conditions).

Durham initially took the view that the effect of ex parte Brown was that an environmental statement was still required and that any action taken by Sherburn in reliance on an allegedly deemed determination would be unauthorised. By letter of 10 June 1999 Durham warned Sherburn that if it proceeded to commence extractive operations, Durham would take legal action with a view to preventing unauthorised activity and potentially irremediable damage. On 16 June 1999 Durham advised that the relevant sub-committee had authorised the taking of appropriate enforcement action and that the letter constituted a final warning of the legal consequences of commencing extractive operations without a determination following submission of an environmental statement. In early July, however, Durham did a volte face. On the advice of counsel it decided that it was unable to enforce the provision of an environmental statement or to treat the deemed determination as ineffective. An officer's report to that effect was considered by a sub-committee on 13 July and the advice set out in that report was apparently accepted.

That brings me to the position of the applicant. His home is adjacent to Broadwood Quarry. He has lived there for some 18 years. The quarry has been dormant during that time. He is understandably concerned about the proposed reactivation of the quarry and its effect on his amenity and the value of his property. His case is that an environmental statement was required before the determination of the conditions on which operations might be carried out pursuant to the old mining permission. While Durham was adhering to the same view, it was not necessary for the applicant to take action of his own. Durham's volte face caused him to take immediate action to challenge the deemed determination. That course had been to some extent encouraged by the officer's report considered by the Durham sub-committee on 13 July, since the report indicated that a private individual could rely on the Directive as a basis of challenge to the determination in a way that Durham, as an emanation of the State, could not.

The applicant applied for permission to bring judicial review proceedings. Permission was granted on 28 July 1999 by Kay J, who rejected submissions advanced by Sherburn that permission should be refused on grounds of delay and material non-disclosure. On the following day Kay J granted an interim injunction to restrain mining activity at the quarry pending the hearing of the judicial review application. The terms of that injunction were varied by Hooper J on 17 August in order to permit Sherburn to strip off the top soil on part of the site.

The substantive hearing was due to take place in September. It had to be delayed, however, by reason of an intervention in the proceedings by the Secretary of State. It seems that the Secretary of State had learned of Durham's intention to submit to judgment. The Secretary of State did not support that course and wished to make submissions to the court in support of the validity of the deemed determination. Thus in the substantive hearing before me the main submissions were made on behalf of the applicant by Mr McCracken and on behalf of the Secretary of State by Mr Elvin. Mr Taylor for Durham made brief submissions broadly in support of the applicant. Mr Findlay for Sherburn adopted Mr Elvin's submissions and added a few of his own, including the contention that relief should be refused as a matter of discretion even if the applicant's case is otherwise well founded.

The relevant provisions of the 1991 Act

The regime governing old mining permissions is laid down by s.22 of, and Schedule 2 to, the 1991 Act. Section 22 reads, so far as material:

"(1) In this section and Schedule 2 to this Act, old mining permission means any planning permission for development -

consisting of the winning and working of minerals; or

involving the deposition of mineral waste,

which was deemed to be granted under Part III of the Town and Country Planning Act 1947 by virtue of section 77 of that Act (development authorised under interim development orders after 21st July 1943).

An old mining permission shall, if an application under that Schedule to determine the conditions to which the permission is to be subject is finally determined, have effect as from the final determination as if granted on the terms required to be registered.

If no such development has, at any time in the period of two years ending with 1st May 1991, been carried out to any substantial extent anywhere in, on or under the land to which an old mining permission relates, that permission shall not authorise any such development to be carried out at any time after the coming into force of this section ....

An old mining permission shall -

if no application for the registration of the permission is made under that Schedule, cease to have effect on the day following the last date on which such an application may be made; and

if such an application is refused, cease to have effect on the day following the date on which the application is fully determined.

An old mining permission shall, if -

such an application is granted; but

an application under that Schedule to determine the conditions to which the permission is to be subject is required to be served before the end of any period and is not so served,

cease to have effect on the day following the last date on which the application to determine those conditions may be served.

....

This section and that Schedule, and the principal Act [i.e. the Town and Country Planning Act 1990], shall have effect as if the section and Schedule were included in Part III of that Act."

Schedule 2, paragraph 1 deals with applications for registration. Paragraph 2 deals with the determination of conditions. Paragraph 2(1) specifies certain kinds of conditions which may or must be imposed. Paragraph 2(2) provides that, where an application for registration has been granted, an application may be made to the mineral planning authority "to determine the conditions to which the permission is to be subject". Paragraph 2(3) provides that the application must set out the proposed conditions. Paragraph 2(4)-(5) is concerned with service of the application. The key provision for present purposes is in paragraph 2(6), which reads:

"(6) On an application under this paragraph -

the mineral planning authority must determine the conditions to which the permission is to be subject, and

if, within the period of three months beginning with the service of notice of the application ... the authority have not given the applicant notice of their determination, the authority shall be treated for the purposes of section 22 of this Act and this Schedule as having determined that the permission is to be subject to the conditions set out in the application."

The Directive and relevant implementing regulations

The Directive is directed at the carrying out of an environmental assessment before the grant of development consent for specified kinds of project. "Development consent" is defined in Article 1(2) as "the decision of the competent authority or authorities which entitles the developer to proceed with the project". The term "project" is widely defined by the same paragraph to include the extraction of mineral resources. Article 2(1) requires member states to adopt all necessary measures 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. Article 4 distinguishes between certain types of major project for which an assessment is mandatory and others, listed in Annex II and including the extraction of mineral resources, for which an assessment must be undertaken where member states consider that their characteristics so require.

Articles 5 to 10 specify the kind of information needed for the assessment and the procedure which must be followed. By Article 5(1), member states must adopt the necessary measures to ensure that the developer supplies in an appropriate form, and within certain limits, the information specified in Annex III. The information to be provided includes the data required to identify and assess the main effects which the project is likely to have on the environment, together with a non-technical summary. Article 6 contains provisions for consultation of the public, including publication of the information and receipt of representations.

The Directive covers a wide variety of projects and has been implemented in the United Kingdom in a number of different ways rather than by a single, comprehensive measure. In relation to the grant of planning permission, implementation took the form of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, SI 1988 No. 1199 ("the 1988 Regulations"). It is convenient to consider the matter by reference to the 1988 Regulations although they have now been superseded by a 1999 equivalent: nothing turns on any differences between the two sets of regulations.

The heart of the 1988 Regulations is regulation 4, which provides so far as material:

"(1) This regulation applies to any Schedule 1 or Schedule 2 application received by the authority with whom it is lodged on or after 15th July 1988 ...

The local planning authority ... shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration ...."

A "Schedule 2 application" is defined by regulation 2(1) as "an application for planning permission ... for the carrying out of development of any description mentioned in Schedule 2, which is not exempt development and which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location." The "environmental information" is defined as "the environmental statement prepared by the applicant ..., any representations made by any body required by these Regulations to be invited to make representations or to be consulted and any representations duly made by any other person about the likely environmental effects of the proposed development."

The decision in ex parte Brown

Because the decision in ex parte Brown provides the backdrop to the present case, I think it important to examine that decision before moving to the issues now raised. The facts were that the mineral planning authority had determined conditions on an application by a quarry owner under section 22 of and Schedule 2 to the 1991 Act. Householders in the neighbouring village applied for judicial review to quash the determination on the ground that no environmental assessment had been undertaken. The House of Lords held that such a determination was a "development consent" within the meaning of the Directive and upheld the Court of Appeals decision quashing the determination of conditions because of the absence of an environmental assessment as required by the Directive.

Lord Hoffmann, giving the leading speech, examined the matter in terms of the Directive itself. He stated that the 1988 Regulations applied only to the grant of planning permissions. The appeal therefore turned on the meaning of "development consent" in the Directive and in particular on whether the determination of conditions under the 1991 Act amounted to such development consent. Having described the procedures under the 1991 Act, he stated at pages 457E-458A:

"The imposition of conditions upon the exercise of a planning permission usually takes place concomitantly with the grant of the permission. There is no question of having to characterise the nature of the imposition of the conditions separately from the grant of the permission. Section 22 is, so far as I am aware, unique in United Kingdom planning law in conferring a general duty upon planning authorities to consider whether to impose conditions upon a class of planning permissions which may have subsisted untrammelled for half a century. This duty to consider arises because the legislature has created a machinery by which, on penalty of forfeiting the benefit of the permission, owners of land have to register and then submit themselves to the decision of the mineral planning authority as to what conditions should be imposed. Unless the planning authority is given the opportunity to impose such conditions, the planning permission becomes void.

Can it therefore be said that the decision imposing the conditions is a decision of the competent authority or authorities which entitled the developer to proceed with the project - the definition of development consent in the Directive? The imposition of conditions is not a decision that the developer shall be entitled to proceed. Mr Straker, who appeared for the authority, was quite right in saying that the source of the developers right to proceed with the project was and remained the planning permission of 1947, even after conditions had been imposed. Section 22(2) expressly says that the effect of the registration of conditions is that the old mining permission has effect as if granted subject to the conditions. On the other hand, the developer cannot proceed unless the planning authority has determined (or is deemed to have determined: paragraph 2(6)(b)) the appropriate conditions. So that although the determination does not decide whether the developer may proceed but only the manner in which he may proceed, it is nevertheless a necessary condition for his being entitled to proceed at all.

Is this sufficient to bring it within the European concept of a development consent? I think it is ...."

At the end of his speech Lord Hoffmann added two footnotes. The second was in these terms (at page 459D):

"Secondly, it was submitted that in a case in which a mineral planning authority fails to deal with an application to determine conditions and a deemed determination on the conditions proposed by the developer takes effect under paragraph 1(6)(b) of Schedule 2, the court should disapply the deeming provision on the ground that it would enable a mineral planning authority merely by inaction to avoid its European law obligation to undertake an environmental impact assessment. This question does not arise in the present case and I say nothing about it."

Thus the House of Lords appeared expressly to leave open the very question raised by the present case.

The effect of ex parte Brown

Mr McCracken's first submission is that the present case is nonetheless decided by the binding authority of ex parte Brown. Although the House of Lords thought that it was leaving open the very question raised by the present case, its decision in fact provides the answer to it. By paragraph 2(6)(b) of Schedule 2 to the 1991 Act, Durham is to be treated as having determined that the permission is to be subject to the conditions set out in Sherburn's application. There is therefore a determination, albeit a deemed determination, by the authority. Ex parte Brown makes clear that such a determination is a development consent within the meaning of the Directive. It also makes clear that such a determination must be quashed if it should have been, but was not, accompanied by an environmental statement in accordance with the requirements of the Directive. The circumstances of the application in ex parte Brown were materially the same. The applicant was the owner of neighbouring property who was applying to quash a determination of the mineral planning authority. The same result should follow.

I accept that in the present case there was a determination, albeit a deemed determination. I also accept that the determination was a development consent within the meaning of the Directive. Mr Elvin advanced a short submission to the effect that there was no development consent because a development consent is defined in Article 1(2) of the Directive as "the decision of the competent authority or authorities which entitles the developer to proceed with the project" and in the present case there was no decision at all by the competent authority, but rather a failure to decide. In my judgment that is too narrow a view of the Directive. The procedures laid down in the Directive must be intended to apply as appropriate to any decision of the competent authority which entitles the developer to proceed, whether that decision is an actual decision or a deemed decision. It would frustrate the objective of the Directive if its requirements could be avoided simply by a provision of national law deeming a decision to have been made after a specified period.

But that is not enough to get the applicant home by way of straightforward reliance on ex parte Brown. That case concerned an actual determination by the authority, not the operation of the deeming provision. The House of Lords recognised that different considerations might apply in relation to the deeming provision. Whether different considerations do in fact apply is a matter to be resolved in the context of the various other issues that have been raised in the submissions before me. It is also necessary to examine principles of European law that were not considered by the House of Lords in ex parte Brown. Only when those matters have been looked at can it be seen whether the decision in ex parte Brown is or is not binding and determinative authority for the purposes of the present case. To assert simply that ex parte Brown decides the matter is to beg all the relevant questions.

I therefore move on to consider the other issues raised. I think it convenient to take those issues in a somewhat different order from that adopted by Mr McCracken.

Has there been a deemed determination at all?

Mr McCracken advanced a submission, which is not to be found in his grounds or skeleton argument, to the effect that on the facts of the case there has not been a deemed determination at all and it is still open to Durham to make an actual determination. By Schedule 2, paragraph 2(6)(b), the authority is to be treated as having determined that permission is to be subject to conditions set out in the application if within the three month period "the authority have not given the applicant notice of their determination". It is said that notice of a determination was given in this case within the three month period, in that Durhams letter of 4 March 1999 gave notice of a determination that Durham would not process the application without an environmental statement.

The submission goes on that the giving of notice is effective to prevent the deeming provision from operating even if it is notice of a determination that is not a valid or lawful determination. Reliance is placed on R v. Rochdale MBC, ex parte Brown [1997] Env LR 100, a case in which the applicant sought to quash an actual determination of a mineral planning authority under paragraph 2(2)(a). The authority argued that if even the decision was unlawful, the effect of quashing it would be to apply the developer's conditions since any redetermination could not be made within the three month period provided for in paragraph 2(6)(b), with the result that the authority would be treated as having determined the permission on the basis of the developer's conditions. Ognall J held that notice of a determination could be given under paragraph 2(6)(b), so as to prevent the operation of the deeming provision, even if the determination was unlawful and was subsequently quashed. The giving of notice was a separate matter and the quashing of the determination did not result in the quashing or invalidity of the notice. Since there was an effective notice, the deeming provision did not operate. Ognall J adopted that construction despite its apparent difficulties, because:

"I find the notion of construing a statute so as to deny in all practical terms the right of an aggrieved party to seek redress from the court where an administrative function has been abused a repugnant one .... To impute such intentions to the legislature in this case is not warranted, in my judgment, by the words of the provision, or the context or purpose of it."

It is submitted that the same robust principle should cause the court to hold in this case that a decision concerning the need for an environmental statement is a determination within the meaning of paragraph 2(6)(b), notice of which was duly given by Durham to Sherburn.

In addition, Mr McCracken prays in aid the principle expounded by the European Court of Justice in Case C-106/89 Marleasing [1990] ECR I-4135 that -

"in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ..." (page I-4159, para 8, emphasis added).

To construe "determination" in paragraph 2(6)(b) as including a determination about the need for an environmental statement would, it is submitted, avoid a result incompatible with the Directive because it would avoid a situation in which a deemed determination of conditions was made without consideration of an environmental statement.

Those submissions are in my view untenable. It is plain that "determination" in paragraph 2(6)(b) means a determination of the conditions to which the permission is to be subject; it is not a determination of any other kind. The whole of paragraph 2 is concerned with the determination of conditions, as its heading suggests. Paragraph 2(2) provides in terms for the making of an application to the mineral planning authority to determine such conditions. Paragraph 2(6)(a) provides in terms for a duty on the authority to determine such conditions. Paragraph 2(6)(b) must likewise be dealing with the determination of such conditions. It can only mean that if the authority has not given notice of its actual determination of conditions within three months, it is to be treated as having determined that the permission is to be subject to the conditions set out in the application. In contending for a different construction, Mr McCracken is inviting the court to give "determination" in paragraph 2(6)(b) a meaning that it cannot have been intended to bear and cannot sensibly bear. Such a course cannot be justified either by reference to the approach in R v. Rochdale MBC, ex parte Brown or by reference to the principle in Marleasing.

As to Marleasing, Mr McCracken cited a number of cases illustrating the willingness of the courts to qualify the apparently plain meaning of a statute by reading words in so as to achieve a result in conformity with the United Kingdoms obligations under EC law. I do not think it necessary to cite them. The principle itself is not in dispute. Another way of expressing it is to be found in the speech of Lord Keith in Webb v. Emo Air Cargo (UK) Ltd. [1993] 1 WLR 49:

"... it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation" (page 59F, emphasis added).

The proposition for which Mr McCracken contends would involve an unacceptable distortion of the meaning of the domestic legislation.

If more were needed, I would hold that the letter of 4 March 1999 cannot properly be regarded as giving notice of a "determination" of anything. Although the word "decision" is used at one point, the letter amounts in substance to no more than a request to Sherburn to submit an environmental statement voluntarily within three months.

In the circumstances it is unnecessary to consider whether R v. Rochdale MBC, ex parte Brown was rightly decided in so far as it held that there could be a valid notice of determination under paragraph 2(6)(b) even though the determination itself was quashed. Mr Elvin made clear that he would if necessary have contended that the case was wrongly decided. But the decision does provide a possible justification for an otherwise unexplained assumption made by the House of Lords in R v. North Yorkshire CC, ex parte Brown, namely that if the authoritys determination was quashed it would be open to the authority to make a fresh determination outside the three month period of the deeming provision.

Do the 1988 Regulations apply?

A separate submission advanced by Mr McCracken, though derived from similar considerations, was to the effect that an environmental statement was required in this case simply as a matter of national law, on the ground that the 1988 Regulations are to be construed as applying to an application under the 1991 Act. The submission was along the following lines. The relevant provisions of the 1991 Act are part of the same scheme of legislation as the Town and Country Planning Act 1990. Section 22(7) of the 1991 Act provides that section 22 and schedule 2 are to have effect as if included in Part III of the 1990 Act. By section 336 of the 1990 Act, "planning permission" means permission under Part III; and by section 72 of the 1990 Act, a grant of planning permission may be conditional. An application for the determination of conditions under the 1991 Act is therefore to be regarded as an application for planning permission under Part III of the 1990 Act. The 1988 Regulations apply to applications for planning permission under Part III (see in particular the definitions of "Schedule 1 application" and "Schedule 2 application" in regulation 2(1)). It follows that the 1988 Regulations apply to applications for the determination of conditions under the 1991 Act; and the regime laid down by regulation 4 prohibits a determination without first taking into consideration the requisite environmental statement. If this is a possible construction, then in accordance with the Marleasing principle it should be adopted since it achieves compatibility with the Directive.

Again I consider the submission to be untenable. It runs directly counter to the basis of the decision in R v. North Yorkshire CC, ex parte Brown, which proceeded from the premise that the 1988 Regulations apply only to the grant of planning permission and do not apply to applications under the 1991 Act (see in particular [1999] 2 WLR at 455B and 456B). I further accept Mr Elvins contentions that the 1988 Regulations embody the same concepts as the 1990 Act and refer across only to the 1990 Act, and that to treat an application under the 1991 Act as an application for planning permission under the 1990 Act would do unwarranted violence to the 1990 Act. Under Part III of the 1990 Act, planning permission is required for the carrying out of any development of land, i.e. for operations of various kinds or for any material change in use (sections 55 and 57). It is the old mining permission, granted long ago, that gives permission for the carrying out of development in a case such as the present. The imposition of conditions under section 72 for regulating the development is conceptually distinct from the grant of the permission that authorises the development. Yet an application under section 22 of the 1991 Act is concerned only with the imposition of conditions, not with the grant of the permission itself. To treat it as an application for planning permission simply does not make sense. The fact that the determination of conditions in the exceptional context of the 1991 Act has been held to be a development consent for the purposes of the Directive does not undermine that analysis.

The above conclusion is further supported by paragraph 9(1) of schedule 2 to the 1991 Act, which provides that section 69 of the 1990 Act (concerning the registration of applications for planning permission) "shall have effect with any necessary modifications as if references to applications for planning permission included applications under paragraph 1 or 2 above". It is a deeming provision which applies one specific provision of the 1990 Act to applications under the 1991 Act, for a particular purpose. The language presupposes that applications under the 1991 Act would not be applications for planning permission but for the deeming provision. Moreover, if the submission for the applicant were correct, the provision would be otiose.

For those reasons I also consider that the construction for which the applicant contends would distort the meaning of the legislation and go beyond the permissible limits of the Marleasing principle.

Is the deemed determination invalid by reason of incompatibility with the Directive?

That brings me to what I consider to be the heart of this case. Mr McCracken contended that, if his points of construction of the domestic legislation failed, then the deeming provision or Durhams failure to disregard it could be challenged on the ground of incompatibility with the Directive. The applicant had a directly effective right under the Directive, enforceable as against Durham as an emanation of the State, that the environmental information required by the Directive be made available to him and that Durhams decision be made only in the light of that information and of comments on it by the applicant and other interested persons or bodies. Durham should therefore have disregarded the unlawful statutory deeming provision and have applied the remaining statutory procedures, treating Sherburns application as an extant application which required the submission of an environmental statement and which had to be decided within a reasonable time (there being no specific statutory time-limit once the three month deeming provision was disregarded).

It is common ground, at least for the purposes of the present case, that the relevant provisions of the Directive are capable of having direct effect. The most recent statement of the extent to which they can be relied on by individuals in national courts is to be found in the judgment of the European Court of Justice in Case C-435/97, World Wildlife Fund (WWF) v. Autonome Provinz Bozen (16 September 1999, not yet reported), where the court concluded:

"Articles 4(2) and 2(1) of Directive 85/337 are to be interpreted as meaning that, where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case, it is for the authorities of the Member State to take, according to their relevant powers, 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" (para 4 of the Courts ruling; see also paras 68-71 of the judgment).

However, Mr Elvin submits on behalf of the Secretary of State that the applicant in the present case is seeking to deploy the doctrine of direct effect in an impermissible way. What he is seeking to achieve by reliance on the Directive is to place an obligation on the developer, Sherburn, and/or to expose Sherburn to penalties. Sherburn would be required to produce an environmental statement in order to prevent the planning permission from lapsing and to obtain a determination that would enable it lawfully to use the permission pursuant to s.22(2) of the 1991 Act, and thus to avoid the risk of enforcement action. He is thereby seeking to give the Directive "horizontal" direct effect, which on established authority is not permitted: see e.g. Marshall v. Southampton Area Health Authority [1986] 1 QB 401, Faccini Dori v. Recreb Srl [1994] ECR I-3325, Luciano Arcaro [1996] ECR I-4705, and R v. Secretary of State for Employment, ex parte Seymour-Smith [1997] 1 WLR 473. Furthermore an argument the same as, or closely related to, that relied on by the present applicant was rejected in R v. Somerset County Council, ex parte Morris & Perry (Maurice Kay J, 29 July 1999) and the court should follow that decision. This issue was not addressed by the House of Lords in ex parte Brown, which proceeded on the basis of a concession before the Court of Appeal that the applicants could rely on the direct effect of the Directive. The present case is distinguishable, because it is concerned with the point left open in ex parte Brown. If necessary, however, Mr Elvin would submit that ex parte Brown was decided per incuriam and, although a decision of the House of Lords, should not be followed.

Mr McCracken counters with the submission that the present case is one of "vertical" direct effect, not horizontal direct effect. The applicant is entitled to rely on the direct effect of the Directive as against Durham, an emanation of the State, so as to strike down a decision reached by the authority in breach of the procedures laid down by the Directive. The fact that Sherburn will lose the benefit of the deemed determination if the applicant succeeds in his application does not convert the case into one of horizontal direct effect or otherwise preclude reliance on the direct effect of the Directive: see e.g. Case 103/88, Fratelli Constanzo v. Comune di Milano [1989] ECR 1839. The mere fact that litigants are private individuals does not prevent reliance on a directive: see e.g. Case C-194/94, CIA Security v. Signalson [1996] ECR I-2201, Case C-441/93, Pafitis v. Trapeza Kentrikis Ellados AE [1996] 2 CMLR 551. World Wildlife Fund (WWF) v. Bozen was itself a case in which private individuals who lived near an airport were relying on the Directive to challenge a decision giving approval for a project for the restructuring of the airport. Mr McCracken seeks to distinguish the cases relied on by Mr Elvin and to rely on ex parte Brown as binding authority in support of his case.

In my judgment the key to the issue lies in the fact that, in order to succeed, the applicant must show that Durham was required as a matter of European law to disregard the deeming provision contained in the 1991 Act and to apply the remaining statutory procedures as if the deeming provision were ineffective. So long as the deeming provision had legal effect, there was nothing left for Durham to do: it could not insist on the provision of an environmental statement before reaching a determination, since by virtue of the statute it was already deemed to have made a determination. The reason why this seems to me to be the key to the issue is that, in order to disregard the statutory deeming provision, Durham would have had to rely on the Directive as overriding the rights conferred on Sherburn by national law. That would have involved Durham, an emanation of the State, relying on the Directive as against Sherburn, an individual. In my judgment that would be contrary to the principles laid down by the European Court of Justice concerning the direct effect of directives. An individual may rely on the direct effect of a directive as against the State so as to have inconsistent national law disapplied; but the State which has defaulted in its implementation of the directive cannot rely on the direct effect of the directive as against an individual so as to disregard inconsistent national law or have it disapplied. If Durham was unable to rely on the Directive as against Sherburn, then it seems to me to follow that the applicant cannot show that Durham erred in law or otherwise acted unlawfully in failing to disregard the deeming provision or to apply the remaining statutory procedures as if the deeming provision was ineffective. The fact that an application for judicial review is brought by an individual against a State authority cannot confer on that authority rights that it would not otherwise enjoy or impose on it obligations to which it would not otherwise be subject.

Those considerations apply a fortiori where the effect of disregarding or disapplying the inconsistent national law is to impose obligations on an individual or to expose an individual to the risk of penalties. Yet that would be the effect of the relief sought by the applicant. Sherburn would be deprived, without compensation, of the benefit of the deemed determination and would then have to produce an environmental statement if it wanted to obtain an actual determination (which might in any event determine conditions different from those applying under the deemed determination). The suggestion made on behalf of the applicant and Durham that the developer would have a choice in the matter is unrealistic. The fact is that, on the applicants case, an environmental statement would be a prerequisite to a determination of conditions; and without such a determination, the planning permission would remain in suspense and the developer could not lawfully use it. Further, to proceed with quarrying in the absence of a determination would expose the developer to the very real risk of enforcement action, as is highlighted by the fact that Durham had authorised the taking of enforcement action in the present case before it changed its position concerning the effect of the Directive.

In considering the principles laid down by the European Court of Justice, a convenient starting point is Marshall v. Southampton Health Authority, in which the Court held:

"... a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.

.... It follows that a directive may not impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person" (see [1986] 1 QB at page 422, paras 47-48).

That passage reflects the analysis of earlier authority by the Advocate General, Sir Gordon Slynn, who stated:

"... [A] directive comes into play only to enable rights to be claimed by individuals against the state in default. The state cannot rely on its own failure to confer those rights. The citizen may assert them against the state either as a sword or as a shield.

To give what is called horizontal effect to directives would totally blur the distinction between regulations and directives which the EEC Treaty establishes ...." (pages 412H-413A).

After some debate by Advocates General in subsequent cases, the approach in Marshall was given clear confirmation in Faccini Dori v. Recreb Srl. It was repeated in Luciano Arcaro, in these terms:

"36. The Court has made it clear that the possibility of relying, before a national court, on an unconditional and sufficiently precise provision of a directive which has not been transposed exists only for individuals and only in relation to each Member State to which it is addressed. It follows that a directive may not by itself create obligations for an individual and that a provision of a directive may not therefore be relied upon as such against such a person .... The Court has stated that this case-law seeks to prevent a Member State from taking advantage of its own failure to comply with Community law ....

37. In that same line of authority the Court has also ruled that a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive" (see [1996] ECR I-4729).

In R v. Secretary of State for Employment, ex parte Seymour-Smith, the House of Lords held that it was not open to an individual to seek relief as against the State by way of disapplication of a national law standing in the way of a claim by the individual against another individual. The context was that of employment legislation and a prospective claim by employees against their employers which was precluded by the qualifying period laid down by an Order. In the leading speech Lord Hoffmann stated:

"Mr Allen tried to build upon the Marshall doctrine that Directives can confer rights upon individuals against the state by saying that the employees had a right against the state as legislator that it should implement, or not legislate incompatibly with, a Directive. On this basis they were entitled to have relief against the state clearing the Order out of their path and leaving them free to sue their employers. But this seems to me no more than a play upon words, a piece of legerdemain with the word right. The basis of the enforceability of Directives against the state and its emanations is a species of estoppel: the member state may not plead, as against individuals, its own failure to perform the obligations which the Directive entails. But the individual has no right of mandamus against the state in his national court requiring that the directive be implemented .... The right asserted by Mr Allen would be something quite different from the rights against the state applied in Marshall. The effect would be to give the Directive, by an easy two-stage process, the very effect which the jurisprudence of the Court of Justice says it cannot have, namely to impose obligations upon an individual ... (page 478C-F).

The factual situation here is of course materially different, but ex parte Seymour-Smith illustrates the need to guard against the impermissible invocation of the direct effect of a directive in proceedings which, although brought by an individual against the State, are directed in substance to the States relationship with another individual. The ultimate obstacle faced by the applicant in the present case is the statutory deeming provision, together with the rights that it confers on the developer and the obligations that would be placed on the developer if it were disapplied. The applicant could not rely on the Directive against the State as legislator so as to have the deeming provision disapplied, just as the applicant in ex parte Seymour-Smith could not seek relief in that way against the State. Equally the applicant cannot achieve the same result indirectly, by proceeding against Durham and contending that Durham acted unlawfully in failing to disregard the deeming provision.

I acknowledge that in ex parte Seymour-Smith the applicants were seeking the disapplication of the relevant Order with the ultimate objective of proceeding against their employer, whereas in the present case the applicant has no legal relationship with the developer and does not seek to make any claim against the developer. In my view, however, that does not alter the position. The issue is not to be analysed simply in terms of "horizontal" as opposed to "vertical" direct effect. One is concerned here with the underlying rationale that the State cannot rely as against an individual on its own default in implementation of a directive. Yet that is in substance what the applicant says Durham should have done.

I do not accept that the authorities relied on by Mr McCracken show the doctrine of direct effect to have a broader application than I have indicated. The authority most helpful to him is Fratelli Constanzo v. Comune di Milano. The applicant in that case had been excluded, in breach of the requirements of a directive, from the procedures for the award of a contract and was relying on the direct effect of the directive so as to challenge the decision of the relevant administrative authorities to exclude it. The decision was challenged on the ground that it was based on a provision of national law which was incompatible with the directive (see [1989] ECR at page 1865 para 12). The Court held that the administrative authorities were under the same obligation as a national court to apply the directly effective provisions of the directive and to refrain from applying provisions of national law which conflicted with them (pages 1870-1871 paras 28-33). The Court seems therefore to have considered that the applicant was entitled to rely on the direct effect of the directive so as to require the administrative authorities themselves to disapply the inconsistent national law. The path was cleared for the applicants challenge to succeed before the national court notwithstanding that, as the report for the hearing makes clear (page 1846), the contract had already been awarded to another tenderer and its withdrawal would seriously affect the interests of the successful tenderer. Although that case has some apparent similarities to the present one, I do not think that it goes far enough to get Mr McCracken home. It was not being said in Fratelli Constanzo that the administrative authorities were entitled or obliged to rely on the directive as against a third party so as to deprive that party of a benefit conferred on it by national law and/or to impose obligations on the third party or to expose it to the risk of penalties. The point was the narrower one that the administrative authorities should have disapplied the national law so as to avoid excluding the applicant - the very person who was relying on the direct effect of the directive - from the tendering procedures in breach of the directive. Looked at in that way the case does not undermine the conclusion that I have reached on the limits of the doctrine of direct effect or on its application in this case.

All I need say about CIA Security v. Signalson is that, for the reasons given by Lord Hoffmann in ex parte Seymour-Smith at pages 477H-478B, it is entirely compatible with the established jurisprudence to which I have referred on the doctrine of direct effect. Pafitis v. Trapeza Kentrikis Ellados is an ordinary application of the doctrine of direct effect. It is clear from the opinion of the Advocate General (at [1996] 2 CMLR 564 para 25) that the measure under challenge was adopted by a temporary administrator whose appointment and performance of duties were subject to legislative ratification and who was an emanation of the State for the purposes of the direct effect doctrine. Although World Wildlife Fund (WWF) v. Bozen establishes that the relevant provisions of the present Directive are capable of having direct effect, I do not read the judgment of the Court of Justice as affecting the established limits of the doctrine of direct effect itself.

I also reject Mr McCrackens submission that ex parte Brown is binding authority that the direct effect of the Directive may be relied on by the applicant in the present context. There is nothing to show that the issue of direct effect was the subject of detailed consideration by the House of Lords in ex parte Brown. It had been conceded before the Court of Appeal that the Directive had direct effect (see [1998] Env LR 385 at 389) and the issue does not seem thereafter to have been addressed. Some of Mr Elvins submissions, if correct, would suggest that that the concession was wrongly made. For present purposes, however, I can put that on one side. It suffices that ex parte Brown is distinguishable because it was not concerned with the statutory deeming provision which is at the heart of the present case both generally and as regards the specific issue of direct effect.

The nearest case factually to the present is R v. Somerset County Council, ex parte Morris & Perry. The applicant was a quarry owner who sought a declaration to the effect that a deemed determination prevailed over a purported determination made outside the three month time limit. The application was held to succeed in substance. As one of the arguments against the grant of relief as a matter of discretion, the authority contended that to grant relief would lead to a breach of the Directive since it would allow the applicants conditions to prevail without an environmental impact assessment. Maurice Kay J rejected the contention, holding that it was not open to the authority, as an emanation of the State, to give in all but name direct effect to the Directive against a private party. I agree with that reasoning and, for reasons already given, consider it to apply with equal force in the context of the present case. If the present applicant is right, then Durham will have been required to give in all but name direct effect to the Directive against the developer.

I should record that Mr McCracken made in addition a number of generalised submissions about the primacy of European law and the duties of court to give effect to it. In my judgment they do not assist with the detailed inquiry into the limits of the doctrine of direct effect or provide any basis for the applicant succeeding if the application goes beyond those limits. To the extent that Mr McCracken was seeking to lay the ground for an action in damages against the State for default in implementation of the Directive, I do not consider the present application to be an appropriate means of achieving that purpose.

Finally on this issue, Mr McCracken submitted that if I were otherwise against him I should make a reference to the European Court of Justice for a preliminary ruling. I do not consider a reference to be necessary or appropriate. The case concerns the application of established principles of EC law to a particular factual and legal context. I should not rush to make a reference. It is the kind of case where it is better for the judge at first instance to decide the case himself.

Was there a valid application?

A further submission by Mr McCracken, though not elaborated as a separate point, was that, as the Directive prohibits the grant of development consent unless the developer has submitted an environmental statement, Sherburn did not make an application that was valid under European law and Durham had no power to regard it as valid. That submission depends again on the applicants ability to rely on the direct effect of the Directive. It does not give rise to materially different issues from those already considered. It fails for essentially the same reasons as those already given.

Discretion

Since the substantive grounds of application have failed, I do not need to spend much time on considering the points that were raised on behalf of Sherburn in relation to the refusal of relief on grounds of discretion. But I shall deal briefly with them. I shall do so on the assumption, challenged by Mr McCracken, that the court is not precluded by EC law from refusing relief as a matter of discretion.

Mr Findlay submitted first that Durhams decision that an environmental statement was needed was flawed. That point would not have caused me to refuse relief if the applicant had succeeded on the substance of his challenge. Both Durham and the Secretary of State took the view that the case called for an environmental statement. The view they took was not obviously flawed and it could not be said on the evidence before the court that an environmental statement was not required by the Directive.

The second submission was that relief should be refused on the ground that there was undue delay in making the application and that Sherburn had suffered hardship and/or prejudice as a result. When granting permission for the application to proceed, Kay J held that it was brought promptly. For the same reasons, which I need not elaborate, I would have held that there was no undue delay. In any event I would not have regarded delay or resulting hardship or prejudice to be a sufficient reason for the refusal of relief if the application were otherwise well founded.

Conclusion

For the reasons given, the application is dismissed.