The decision of the Court of Appeal in No Adastral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88, reinforces the principle that what is presently termed “strategic environmental assessment” is very much an ongoing process rather than a single finite step.
By way of reminder, Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (“the SEA Directive”) is transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004. Strategic environmental assessment (“SEA”) may be required, for instance, in the case of local development documents and local development plans.
In No Adastral, the appellant applied under section 113 of the Planning and Compulsory Purchase Act 2004 to quash the housing allocation contained in a core strategy adopted by the local planning authority (“LPA”). Its principal concern was that the site was close to a river estuary that was both a SSSI and a SPA, and its ground was that the river estuary had not been properly considered in accordance with, inter alia, the SEA Directive.
At first instance, the judge had found that there had been procedural defects with regard to the carrying out of a SEA, but that these had been remedied – before the core strategy was adopted – by the production of an updated sustainability appraisal and consultation on it. One of the main questions for the Court of Appeal is the extent to which, as a matter of law, it is possible to cure early failings in this way.
Citing the decision of the High Court in Cogent Land Llp v Rochford District Council [2012] EWHC 2542 (Admin), the appeal judges held that deficiencies in the SEA process are capable of being cured later as a matter of law. In particular, Article 2(b) of the SEA Directive defines “environmental assessment” as: “The preparation of the environmental report, carrying out consultations, the taking into account of the environmental report and the results of the consultations in the decision making and the provision of information on the decision in accordance with Article 4 to 9.”
Furthermore, although the SEA Directive requires an “environmental assessment” to be carried out and taken into account “during the preparation of the plan”, it does not stipulate when in the process.
John Martin is a planning law consultant
