Law firm allays fears over 15 yearly reviews

A RECENT briefing note issued by the Quarry Products Association (26 September 2006) included precautionary advice to members that if a due date for a periodic 15 yearly review is missed, planning permissions for mineral extraction could be lost. However, according to specialist mining and minerals law firm Stephens & Scown, this is not the case and mineral operators need not be concerned.

Periodic reviews apply to all mining sites and take place every 15 years from the date of either a previous review, or, if no review has taken place, from the date of the latest mineral permission relating to the site. Provisions for such reviews are contained in Schedule 14 to the Environment Act 1995.

It is apparent, however, that many mineral planning authorities (MPAs) are beginning to miss sending out the Reminder Notices, which must be served in connection with the first periodic review. Paragraph 4 of Schedule 14 stipulates that the Reminder Notice should be issued no later than 12 months before the first review date, but in many cases this has not been happening.

The risk which concerns the QPA is that mineral permissions will cease to have effect because no application for the determination of conditions is made to the MPA by the first review date as no Reminder Notice has been served.

However, according to Ian Lamond, a partner with Stephens & Scown, mineral operators should not be unduly concerned, as Schedule 14 makes it clear that the only permissions which cease to have effect are those identified in a Reminder Notice. ‘If no Reminder Notice has been duly served by the MPA, the planning permission continues,’ he says.

If an MPA does forget to serve a Reminder Notice, paragraphs 3–5 of MPG 4 advise the Authority to use Modification Orders under the Town and Country Planning Act to update conditions.

The guidance states that: ‘Technical default would arise where the MPA failed to serve notice under paragraph 4 of Schedule 14 to the 1995 Act by the required date. The Act makes no provision for late service of notice of a periodic review and, in such circumstances, the validity of the review and any subsequent reviews would be in doubt. MPAs are strongly advised to ensure that they have the mechanisms in place to ensure that notice of a periodic review is served in time. However, in the unlikely event of default, MPAs should use their order making powers to ensure that mineral planning permissions are updated where necessary and provision made for subsequent review’.

‘It is clear from this guidance that it is the validity of the review and any subsequent reviews that would be in doubt in such circumstances, rather than the mineral permissions which should have been reviewed,’ says Mr Lamond.

He adds that the Modification Order procedure has, by comparison with Schedule 14, a number of drawbacks. For instance, the power to make a Modification Order is discretionary, and secondly, Mr Lamond says it is far from clear how a mineral operator could be required to provide an Environmental Statement in connection with such an order.

‘In any event, it may be arguable that a Reminder Notice can be served out of time on the ground that it appears to be more consistent with the general object of the 1995 Act to treat a notice served purportedly under Paragraph 4 but out of time as valid rather than invalid,’ he says.