The Environmental Assessment of Plans and Programmes Regulations 2004 (“the Regulations”) transpose into domestic law Directive 2011/42/EC (“the Directive”). Strategic environmental assessment (“SEA”) is required, for instance, in the case of local development documents and local development plans.
Regulation 8 of the Regulations prohibits the adoption of a plan or programme until there has been compliance with, amongst others, Regulation 12. This requires the preparation of an environmental report, which must identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme and “reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme”. In the case of the latter, Schedule 2 to the Regulations provides that the report must include an outline for selecting the alternatives dealt with and a description of how the assessment was undertaken.
In Heard v Broadland District Council and others [2012] EWHC 4344 (Admin) the claimant challenged under section 113 of the Planning and Compulsory Purchase Act 2004 the adoption by three local authorities of a joint core strategy (“the JCS”). The JCS included provision for major urban growth in an area to the north east of Norwich referred to as the “North East Growth Triangle” (“NEGT”). His principal ground of challenge was that the JCS was unlawful in that the SEA undertaken by those local authorities did not (a) explain which reasonable alternatives to urban growth in the NEGT they had selected and why and (b) examine reasonable alternatives in the same depth as the preferred option which had emerged.
The court allowed the claim. As far as (a) was concerned the judge concluded that the need for outline reasons for the selection of the alternatives dealt with at the various stages of the process had not been addressed. Furthermore, the reasons for the selection of the preferred option itself had not been given. In terms of (b) the judge also accepted the claimant’s contention. The aim of the Direction was met by, and it was best to interpret it as requiring, an equal examination of the alternatives it was reasonable to select for examination alongside whatever – even at the outset – might be the preferred option.
Finally, the judge decided that he should not exercise his discretion against the award of relief under section 113. There had been a series of failings in relation to the requirements of the Directive.
John Martin
