Condron, R (on the application of) v Merthyr Tydfil County Borough Council & Ors

Factual and Procedural Background

The Plaintiff seeks permission to judicially review four planning permissions granted by two local authorities, the first Defendant and the second Defendant, to Company A, the developer and interested party. These permissions relate to the Cwmbargoed disposal point, a coal processing facility in The City, covering 23.4 hectares, of which 20% lies in the first Defendant's area and 80% in the second Defendant's area. The disposal point has operated since 1957 for coal reception, storage, processing, and transportation within the South Wales coalfield.

The Plaintiff challenges the Defendants' failure to conduct a screening assessment under the Environmental Impact Assessment Directive 85/337/EEC ("EIA Directive") and the Environmental Impact Assessment Regulations 1999 ("EIA Regulations"). The facility is adjacent to, but distinct from, the Ffos-y-fran opencast mining site operated by Company A, which has faced local opposition and previous judicial review proceedings initiated by the Plaintiff. The planning permissions challenged were granted between July 2007 and September 2008, covering extensions, refurbishments, and time extensions of the disposal point's consent.

The Plaintiff initially launched proceedings in October 2008, with permission refused by Collins J in March of the following year. The renewed application was heard in April at the Cardiff Civil Justice Centre, where venue was contested. The Plaintiff argued she would not receive a fair trial in Wales due to the contentious nature of opencast mining there, while the Defendants preferred the case to be heard in Wales.

The challenges are based on two grounds: first, the alleged failure to comply with the EIA Directive and Regulations by not conducting a screening assessment; second, the failure to consider the cumulative environmental effects of a related application to vary a condition permitting coal removal by truck rather than train at the Ffos-y-fran site.

Legal Issues Presented

1. Whether the Defendants were required under the EIA Directive and the EIA Regulations to carry out a screening assessment in respect of the planning applications for the disposal point.
2. Whether the Defendants failed to take into account the cumulative environmental impact of a related application to vary coal transportation methods at the adjacent Ffos-y-fran site.
3. Whether the application for judicial review was made promptly and within the applicable time limits.
4. The appropriate venue for the hearing of these proceedings.
5. Issues relating to costs and public funding of the litigation.

Arguments of the Parties

Appellant's Arguments

• The Defendants were required to conduct a screening assessment under Regulation 7 of the EIA Regulations but failed to do so, constituting an error of law.
• The planning applications fall within categories in Schedule 2 of the Regulations, specifically paragraphs 2(e) (surface industrial installations for extraction of coal), 10(b) (urban development projects), and 13 (changes or extensions to developments listed in Schedule 1), thus triggering the screening requirement.
• The broad and purposive interpretation of the Directive, as supported by European Court of Justice decisions such as Ecologistas en Accion v Madrid and Commission v Italy, mandates a wide scope for EIA obligations.
• The Defendants erred by treating the disposal point and Ffos-y-fran site as separate and failing to consider cumulative environmental effects, particularly regarding the proposed change to coal transportation methods.
• The Plaintiff contended that delay in bringing the claim should be excused due to lack of knowledge and continuing failure by the Defendants, invoking principles of continuing obligations under European law and the right of access to review under Article 10a of the Directive.
• The Plaintiff objected to the case being heard in Wales, citing concerns over impartiality and personal safety.

Defendants' and Interested Party's Arguments

• The Defendants submitted that the applications did not fall within the categories requiring a screening assessment under the Directive or Regulations.
• The disposal point is distinct from the Ffos-y-fran site, which is separately regulated and was subject to an environmental statement and public inquiry.
• The term "for" in paragraph 2(e) of Schedule 2 does not mean "in relation to," limiting the scope of extractive industry developments requiring screening.
• The disposal point is not an urban development project as defined in paragraph 10(b) because it is not located in an urban area nor does it urbanise a previously rural area.
• The cumulative impact argument fails because the sites are separate in function and history, and there is no evidence that the permissions increase output from Ffos-y-fran.
• The Plaintiff’s delay was unjustified; the applications were properly advertised, and the delay barred claims against earlier permissions.
• The venue should be in Wales, following the general expectation for cases involving Welsh public authorities, and unsubstantiated claims of bias are insufficient to justify transfer.
• Regarding costs, the Defendants sought an order for costs against the Plaintiff, with submissions on the timing and extent of costs to be dealt with in writing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ecologistas en Accion v Madrid [2008] C-142/07	Broad and purposive interpretation of the EIA Directive scope; urban road projects fall within Annex I/II even if not expressly mentioned.	The court considered the Directive’s wide scope but distinguished the present case on the nature and location of the disposal point, finding it not arguable that it falls within the Directive’s scope as in Ecologistas.
Commission v Italy C-87/02	No project likely to have significant environmental effects should be exempt from assessment unless comprehensive assessment shows otherwise.	Relied on by the Plaintiff to argue for a wide scope of projects requiring EIA; the court acknowledged the principle but found it not applicable to the disposal point permissions.
R (Goodman) v London Borough of Lewisham and Big Yellow Property Company [2003] EWCA Civ 140	Clarification that planning authorities must determine if an application falls within Schedule 2 descriptions and limits before screening.	The court found that this precedent did not support the Plaintiff’s submissions; it confirmed the approach to screening but did not extend its application to the disposal point.
R v Monopolies and Merger Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23	Court may only substitute its opinion for an authority’s if the decision is irrational or aberrant, even if there is an error of law.	The court applied this principle as a qualification to judicial review of screening decisions, concluding the Defendants’ decisions were not irrational.
Paul Abraham v Region Wallone [2008] C-2/07	Extension of airport runway fell within Annex I/II projects requiring EIA despite absence of explicit mention.	Referenced to illustrate broad interpretation of projects requiring EIA; court found the disposal point’s function was not analogous.
Condron v National Assembly for Wales [2006] EWCA Civ 1573	Previous judicial review proceedings challenging planning decisions related to opencast mining.	Contextual background; the court noted prior unsuccessful challenges by the Plaintiff to related planning decisions.
Finn-Kelcey [2008] EWCA Civ 1067	Delay in judicial review applications must be justified by a strong or clear-cut claim to warrant extension of time.	The court applied this standard to the Plaintiff’s delay, finding no adequate explanation and that the claim was not sufficiently strong to warrant extension.

Court's Reasoning and Analysis

The court first examined whether the planning applications fell within the scope of the EIA Directive and Regulations, which mandate a screening assessment for projects listed in Annex I or II (Schedule 1 or 2). The Plaintiff argued for a broad interpretation, relying on European Court of Justice case law and Commission guidance, asserting the applications fell within relevant Schedule 2 paragraphs (2(e), 10(b), and 13).

The court rejected the Plaintiff’s interpretation, particularly the claim that "for" in paragraph 2(e) means "in relation to," holding it to mean buildings and plants essential to mining development, which the disposal point was not. The disposal point was not an extractive industry site but a longstanding coal processing facility receiving coal from multiple sources, not exclusively from the adjacent opencast mine.

The court further found that paragraph 10(b), concerning urban development projects, did not apply because the disposal point was not in an urban area nor did it urbanize a previously rural area. Regarding paragraph 13, the court noted the disposal point and Ffos-y-fran site were distinct developments and the applications did not alter the opencast mining operations.

The court accepted that failure to conduct a screening assessment when required is reviewable but concluded the Defendants’ decisions not to screen were not arguably flawed. Even if arguable, the decisions were not irrational or outside the range of reasonable responses.

On the second ground, the court found no arguable failure to consider cumulative effects from the related application to vary coal transportation, noting the timing of that application postdated some permissions and that the sites were functionally and geographically distinct.

Regarding delay, the court found the Plaintiff’s explanation inadequate and that the delay barred claims against earlier permissions. The court emphasized the importance of promptness and compliance with procedural rules, noting the Plaintiff’s failures in this regard.

On venue, the court rejected unsubstantiated claims of bias or unfair trial in Wales, affirming the general principle of local justice and the expectation that Welsh judicial review cases involving Welsh public authorities be heard in Wales.

Finally, the court addressed costs and public funding issues, deferring detailed consideration and ordering written submissions. The court acknowledged the complexity of costs in environmental public law cases and the need for careful assessment.

Holding and Implications

The court refused the Plaintiff's renewed application for permission to judicially review the planning permissions.

The direct effect is that the planning permissions granted to Company A for the disposal point remain valid and unchallenged. The court found no arguable legal error in the Defendants' decisions regarding the need for an environmental impact screening assessment or in their consideration of cumulative effects. The Plaintiff's delay in bringing the claim was also a bar to proceeding.

No new legal precedent was established. The decision reinforces the application of established principles governing the scope of the EIA Directive and Regulations, the interpretation of Schedule 2 categories, and procedural requirements in environmental judicial review cases. It affirms the local venue principle for Welsh public law cases and highlights the importance of compliance with procedural rules and promptness in bringing claims.