The Council challenged the grant of the mineral prospecting licences by the Department, one to Flintridge Resources and two to Dalradian Gold, under the Mineral Development Act (NI) 1969.  The total area covered by the licences was around 742 km2.  Substantial parts of the licensed areas fall within the Council’s area.  The Council also owns land which is subject to the licences.  The licensed areas contain a number of Special Areas of Conservation and Areas of Special Scientific Interest.

The grounds of challenge included inadequate consultation, through a failure to provide sufficient information to allow intelligent consideration and response, and breach of the Habitats Directive and the Conservation (Natural Habitats etc) Regulations (Northern Ireland) 1995 by not considering the licences under those provisions.  

On consultation, McBride J concluded that the consultation process was unfair and unlawful.  She held that the Department failed to provide adequate information in respect of what they were proposing to grant, or the reasons why they were proposing to grant the licences, and that, without information regarding the nature of the licences to be granted, or information regarding the reasons why the Department were minded to grant the licences – which would have included the Department’s views about the technical viability of the applications and their impact on the environment – consultees could not give any intelligent response.  This was because the consultees were unable to ascertain whether and, if so, to what extent, the interests they represented might be affected.

The Judge concluded:

* the consultees were not given the draft licences which meant that they did not know in clear terms what the Department was intending to authorise and therefore could not make meaningful representations about the terms of the licence, so that the consultation process was unfair;

* the consultees were not given the actual mineral prospecting work programmes, so did not know what specific activities were being permitted, and did not know where the activities were to be undertaken, which meant consultees were unable meaningfully to engage with the consultation;

* the consultees were not informed of the reasons why the Department was proposing to grant the licences and were therefore unable to make meaningful representations about the impact the grant of the licences would have;

* in the absence of the works programme, the geological review and environmental overview, and the draft licences, consultees had only a limited ability to respond and were therefore placed at a significant disadvantage in challenging the Department’s proposals;

* it would only have been with this information that consultees would be able to provide representations capable of influencing the Department’s decision to grant the licences and, if so, on what terms.

Madam Justice McBride rejected the Department's argument that the material could not be provided because it was subject to confidentiality.

On the Habitats Directive/Regulations issue, the Judge held that the Department failed to comply with its obligations.  McBride J rejected the Department's argument that the grant of the licences was not caught by the provisions, concluding that the grant of a licence permitting mineral prospecting activities falls within the concept of a “plan or project” under Article 6(3) and, additionally, that all the activities authorised by the licences met the test of being likely to have a significant effect on a protected site.  The Department had therefore erred in law in deciding that the Habitats Directive/Regulations did not apply on the basis that the licenced activities did not constitute a plan or project. 

The Judge also rejected the Department's argument that it was impossible to carry out a Habitats screening at the licence stage, holding that the Department had erred in not carrying out initial licence level screening before the grant of a licence.  The Judge considered that the Department was in a position to identify the nature and location of activities which would be undertaken under a licence and so was able to conduct, and ought to have conducted, a licence level Habitats screening.

Mc Bride J commented that the case law makes clear that, in respect of sequential activities, the authority is required to carry out an assessment before agreement is given in relation to the project, not only of the identified activities but also of the potential effects on the protected sites of future activities which are “sufficiently identifiable”, and that, thereafter, the assessment is to be updated as specific activities and locations are notified.  The Judge said that the Department’s scheme for carrying out subsequent Habitats assessment of specific activities, as and when they were brought to their attention, did not negate the need to conduct a Habitats screening before the grant of a licence.

The judgment available here.

Gregory Jones KC and Richard Honey KC, instructed by Andrew Ryan of TLT, appeared for the successful applicant, Derry City & Strabane District Council.