Environment – Development plan – Housing allocation – Respondents adopting core strategy with housing allocation for 2,000 dwellings – Whether plan process flawed by reason of failure to comply with procedural requirements of SEA Directive and Habitats Directive – Whether procedural defects cured by time plan adopted – Appeal dismissed
In July 2013, the respondent council adopted a planning core strategy setting the framework for development in their district until 2027, including the allocation of an area at Martlesham for the development of 2,000 dwellings. The Martlesham site was one of five originally considered for housing allocation; originally, only 1,050 dwellings had been proposed.
The appellant action group opposed the choice of the Martlesham site on the grounds of its proximity to the Deben estuary, which was a designated site of special scientific interest (SSSI) and a special protection area (SPA) enjoying a high level of protection under European law. The appellant brought a claim under section 113 of the Planning and Compulsory Purchase Act 2004, seeking to quash the housing allocation in the core strategy on the grounds that the effects on the estuary had not been properly considered in accordance with: (i) Directive 2001/42/EC (the SEA Directive), implemented into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (the SEA Regulations); and (ii) Directive 92/43/EEC (the Habitats Directive), as implemented by the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations).
The claim was dismissed in the court below. The judge found that there had been procedural defects under the SEA Directive with regard to the carrying out of environmental assessments and consultation of the public, but that those defects had been remedied by the production of an updated sustainability appraisal, with consultation thereon, in November 2011 before the core strategy was adopted. In relation to the Habitats Directive, the judge held that the respondents had not been obliged to carry out a screening assessment at an early stage of the decision-making process, and that an “appropriate assessment” published in November 2011, at the same time as the updated sustainability appraisal under the SEA Directive, had been sufficient; he also held that the respondents had been entitled to leave mitigation measures for consideration at a later stage, even where sufficient information was available at the stage of adoption of the core strategy to enable mitigation to be determined with certainty at that time: see [2014] EWHC 223 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) On the judge’s findings, there had been deficiencies in the SEA process, namely a failure to carry out an strategic environmental assessment (SEA) at the early stages of preparation of the core strategy, prior to the consultation on preferred options, and a failure to consult on the alternative options to the Martlesham site at the time when an increase in housing allocation to 2,000 dwellings was proposed. However, the judge had been entitled to find that those deficiencies had subsequently been cured and that the requirements of the SEA Directive and implementing regulations had been complied with by the time of the adoption of the core strategy.
The deficiencies in the SEA process were capable of being cured as a matter of law. The judge had properly held that the environmental assessment of a draft plan under the SEA Directive was an ongoing process. Although articles 4 and 8 of the SEA Directive required an environmental assessment to be carried out and taken into account “during the preparation of the plan”, neither article stipulated when in the process that had to occur other than that it had to be before the plan was adopted. Similarly, while article 6(2) required the public to be given an “early and effective opportunity” to express their opinion on the draft plan or programme and the accompanying environmental report, that provision did not prescribe what was meant by “early”, other than to stipulate that it must be before adoption of the plan. The SEA Regulations were to similar effect. An applicant’s environmental statement would not always contain the required “full information” about the environmental impact of a project. The SEA Regulations were not based on such an unrealistic expectation but instead recognised than any deficiencies in an environmental statement might be identified through the publicity and consultation processes so that the resulting “environmental information” provided the local planning authority with as full a picture as possible: Cogent Land LLP v Rochford District Council [2012] EWHC 2542 (Admin); [2013] 1 P&CR 2 applied.
There was no evidence that the respondents had made up their mind before they undertook further consultation in light of the updated sustainability appraisal in November 2011. There was nothing to suggest that their ultimate decision was anything other than a genuine decision reached after due consideration of the updated sustainability appraisal and the responses to consultation on it. While the new sustainability appraisal had referred back to earlier documents when dealing with the reasons for rejecting the other site options for housing allocation, it had not done so in such a way as to create an unacceptable “paper chase”; consultees had been made well aware of the reasons for rejecting the alternatives to the Martlesham site. When the respondents made the decision to proceed with the core strategy, they were fully informed about the environmental implications on all alternative areas and of the results of the public consultation on the effect of 2,000 dwellings on all five options. The judge had been right to find that the earlier deficiencies in the SEA process had been cured.
(2) There was no breach of the Habitats Directive on the facts of the case. The language of article 6, imposing the requirement to carry out an “appropriate assessment” before the plan was given effect, focused on the end result of avoiding damage to an SPA and the carrying out of an appropriate assessment for that purpose. Regulation 102(1) of the Habitats Regulations was to similar effect. The November 2011 appropriate assessment, on which the public was consulted, had led to a properly-based conclusion that the allocation of housing proposed in the core strategy would not have an adverse effect on the integrity of the SPA. That obligations under article 6 were therefore satisfied and it was difficult to see how, in those circumstances, anything could turn on the timing of a screening assessment. There was no obligation to carry out a screening assessment at all, let alone any rule as to when it should be carried out. If it was not obvious whether a plan or project was likely to have a significant effect on an SPA, it might be necessary in practice to carry out a screening assessment in order to ensure that the substantive requirements of the directive were ultimately met, and it might be prudent to carry one out an early stage of the decision-making process, but there was no requirement to do so: Sweetman v An Bord Pleanala Case C-258/11 considered.
The appropriate assessment was not flawed by reason of the fact that it left mitigation measures over for assessment at a later stage, even if sufficient information was available to assess the effectiveness of such measures at the stage of the core strategy. The important question was not whether mitigation measures were considered at the core strategy stage in as much detail as the available information permitted, but whether there was sufficient information at that stage to enable the respondents to be duly satisfied that the proposed mitigation could be achieved in practice. The mitigation formed an integral part of the assessment that the allocation of 2,000 dwellings on the Martlesham site would have no adverse effect on the integrity of the SPA. On the findings of the judge, the respondents had been entitled to conclude that the mitigation was achievable and that the proposed development would have no adverse effect: R (on the application of Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] PLSCS 131 applied.
Richard Buxton, solicitor advocate (of Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Paul Shadarevian and Emma Dring (instructed by the legal department of Suffolk Coastal District Council) appeared for the respondents.
Sally Dobson, barrister
