Town and country planning – Core strategy – Environment – Respondents adopting core strategy under which mitigation measures required for any housing development within 7km of Ashdown Forest – Whether respondents considering reasonable alternatives to 7km zone for purposes of duty under regulation 12 of Environmental Assessment of Plans and Programmes Regulations 2004 – Whether that issue sufficiently canvassed in assessment undertaken for purpose of Conservation of Habitats and Species Regulations 2010 – Appeal allowed
In February 2013, the respondents adopted a core strategy, which formed part of the local development plan for the Wealden district and South Downs national park. The appellant was a corporate vehicle controlled by four landed estates whose property interests were affected by that decision. One of the policies in the core strategy concerned the protection of Ashdown Forest as a special protection area (SPA) designated under Directive 2009/147/EC on the conservation of wild birds and a special area of conservation (SAC) designated under Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive). That policy sought to achieve a reduction in the recreational impact of visitors from new housing development by requiring that housing development within 7km of the forest should be accompanied by the provision of suitable alternative natural green space and contributions to on-site visitor management measures.
The appellant brought proceedings under section 113 of the Planning and Compulsory Purchase Act 2004 to quash the core strategy in whole or in part. In particular, it challenged the imposition of the 7km zone on the grounds that the respondents had failed to consider reasonable alternatives to a 7km zone when carrying out their strategic environmental assessment in relation to the core strategy, contrary to their obligations under regulation 12 of the Environmental Assessment of Plans and Programmes Regulations 2004, implementing Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the SEA Directive).
Dismissing the claim in the court below, the judge held that the basis for the inclusion of a 7km zone was sufficiently explained in the assessment, which had been carried out for the purposes of the Habitats Directive, pursuant to the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations assessment). That assessment referred to a zone of 5km, which had been applied elsewhere in relation to development near the Thames Basin Heath. The judge held that the Habitats Regulations assessment sufficiently set out the principled reasoning and evidence base which justified the selection of a protective 7km zone: see [2014] EWHC 406 (Admin). The appellant appealed.
Held: The appeal was allowed.
The identification of reasonable alternatives was a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including Wednesbury unreasonableness. However, in order to make a lawful assessment, the authority at least had to apply their minds to the question. There was no evidence that the respondents had given any consideration to the question of reasonable alternatives to the 7km zone. It was not possible to infer a consideration of reasonable alternatives from the contents of the Habitats Regulations assessment. It was not the function of the Habitats Regulations assessment to consider alternatives. What mattered for the purposes of that assessment was that the core strategy should not lead to any adverse effects on the integrity of the Ashdown Forest SPA. The avoidance and/or mitigation measures recommended in it were put forward in accordance with the precautionary principle with the aim of eliminating the risk of adverse effects and were considered to meet that aim. It did not follow that there were no alternative means of ensuring the necessary protection of the SPA.
The references in the Habitats Regulations assessment to the Thames Basin Heaths precedent of a 5km zone, and to a wider 15km zone, were made not as alternatives to a 7km zone but merely as the starting point for a process of extrapolation leading to the 7km zone. Nor could that assessment be read as a principled set of reasons for choosing a 7km zone and, by implication, for rejecting other solutions. It was sufficient, for the purposes of the Habitats Regulations assessment, that the measures recommended in it, including the 7km zone, would meet the aim of eliminating the risk of adverse effects on the Ashdown Forest SPA. The reasons why the 7km zone would serve that purpose did not amount by necessary implication to reasons why there were no alternative means of ensuring the necessary protection of the SPA. The assessment report did not state or suggest that nothing short of a 7km zone would suffice or that no other measures were possible.
It made no difference that neither Natural England nor the respondents’ environmental consultants had suggested that there was any alternative that might be suitable and should be examined further, or that no one had raised sustained or developed argument in favour of a different solution in the course of development of the core strategy. It was the duty of the respondents to consider the question of reasonable alternatives. Had they considered the question, they might have concluded, in the absence of any suggestions to the contrary, that there were no reasonable alternatives, and have given reasons in support of that conclusion. However, the fact that nobody had suggested alternatives could not validate the respondents’ failure to consider the question at all. There were no grounds for the court to exercise its discretion not to grant relief and, accordingly, the policy imposing the 7km zone would be quashed.
David Elvin QC and Charles Banner (instructed by King & Wood Mallesons LLP) appeared for the appellant; Douglas Edwards QC and David Graham (instructed by Wealden and Rother Shared Legal Service) appeared for the respondents.
Sally Dobson, barrister
