Has your IDO or ROMP been subject to EIA?

Simon Treacy explains why a recent European Court judgement may have implications for the UK quarrying industry

A RECENT European Court judgement on environmental impact assessment (EIA) could have major implications for mineral planning consents previously reviewed under the provisions of the Planning & Compensation Act 1991 and the Environment Act 1995.

"In January 2004 the European Court effectively ruled, among other things, that in considering submitted schemes by a quarry operator to activate a dormant IDO mining consent, the planning authority should have considered requesting an EIA not only before approving the new planning conditions (resulting in a reviewed consent), but also before thereafter approving schemes submitted to satisfy ‘reserved matters’ type planning conditions contained within the reviewed consent itself. Significantly, as no EIA was considered or undertaken at all, the Court has ruled that the UK should take whatever measures are lawfully open to it under the domestic planning system to remedy that failure. This might include revocation or modification of the consent in order that an EIA is carried out (if it turns out that the minerals development should have been subject to EIA in the first place)."

"Although specific to an IDO case, the judgement would appear to be equally applicable to reviewed consents issued under the Review of Old Mineral Permissions (ROMP) in accordance with the 1995 Act. It could therefore have serious implications for any mineral planning consents reviewed under either the 1991 or 1995 Acts, where the reviewed consents were granted without any consideration being given to the need for an EIA."

"Conygar Quarry in Somerset originally received planning consent for extraction under the Town & Country Planning (general Interim Development) Order 1946, an Act empowering planning authorities to grant permission (Interim Development Orders or IDOs) for mineral extraction to respond to the need for construction materials following World War II. The mineral worked at the quarry is Pennant sandstone, and the area within which the site lies is subject to several designations of nature and environmental conservation importance."

"Under the provisions of the 1991 Act, the IDO consent at Conygar Quarry was registered as a valid consent and an application for the determination of new conditions made to the mineral planning authority (originally Avon County Council but later North Somerset Council). Following the mineral planning authority (MPA) imposing more stringent planning conditions than those submitted, the quarry owners appealed to the Secretary of State, who, in 1997, subsequently imposed 54 planning conditions, some of which were ‘reserved matters’ conditions for the MPA to consider before quarry operations could resume on site. The ‘reserved matters’ were approved by the MPA in July 1999 but, significantly, the European Court noted that neither the Secretary of State nor the MPA considered whether it was necessary to require an EIA before determining either the appeal or the ‘reserved matters’ applications."

"A local resident to the quarry requested the Secretary of State in 1999 to revoke or modify the planning permission to remedy the lack of an EIA or consideration of whether EIA was needed. A subsequent challenge to the Secretary of State's decision not to revoke or modify the permission was pursued by the same resident in the High Court of England and Wales. In considering this challenge, interpretation of community law was required and several questions were referred to the European Court of Justice. The subsequent judgement (ref. C-201/02), dated 7 January 2004, ruled that:"

"In the context of applying the 1991 Act, the decision adopted by the competent authorities, whose effect is to permit the resumption of mining operations, comprises a ‘development consent’ within the meaning of the EIA regulations. As such there must be a consideration as to whether or not an EIA is required to be carried out before consent can be given."

"In principle, the EIA must be considered and if necessary carried out at the earliest possible stage in the process. In a consent procedure comprising several stages, one involving a principal decision (issuing the reviewed conditions) and the other involving an implementing decision (ie the approval of schemes submitted under ‘reserved matters’ conditions), an EIA must be considered or carried out prior to issuing the principal decision. If those effects are not identifiable until the time relating to approval of details under the ‘reserved matters’ conditions, then an EIA must be considered or carried out in the course of that procedure."

"The competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an EIA. The detailed procedural rules applicable in that context are a matter for each member state –– in this regard it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an EIA, or alternatively, if the individual so agrees, whether it is possible to claim compensation for the harm suffered."

"It remains to be seen how the UK High Court will consider the implications of this judgement. The case is likely to be heard in April or May this year. Nevertheless, as a European judgement automatically becomes law within each member state, the ramifications are likely to affect not only IDO consents reviewed under the 1991 Act without an EIA, but also mineral planning permissions (ROMPs) reviewed under the 1995 Act, and also the consideration of schemes submitted to satisfy ‘reserved matters’ conditions under those reviewed permissions."

Simon Treacy of Matthews & Sons was asked by the RICS Mineral Policy Panel to summarize the European Court judgement. The above summary should not be relied upon either generally or as applicable in respect of any individual cases. In such circumstances specific specialist advice should be sought.