Environment – Strategic environmental assessment (SEA) – Site of Special Scientific Interest (SSSI) – Claimant applying for order quashing decision to adopt motorway plan – Whether decision-making process unlawful – Whether defendants failing to further conservation and enhancement of SSSI – Application dismissed
The M4 motorway is a vital transport route across South Wales. However, near Newport, there were sections of the motorway which did not have the capacity to accommodate the volume of traffic, resulting in high levels of congestion, traffic jams, accidents and pollution. Therefore, the transport arrangements around Newport were in need of improvement. In July 2014, on behalf of the defendant Welsh Ministers, the Minister for Economy, Science and Transport announced the decision to adopt a plan providing for a new section of motorway to be constructed to the south of Newport, between current M4 junctions 23 and 29, and various complementary measures including the reclassification of the current route of the motorway between those points to a trunk road. The new stretch of motorway would run across the Gwent Levels, an area comprising several Sites of Special Scientific Interest (SSSIs) and the River Usk Special Area of Conservation (SAC).
The claimant environmental organisation contended that the adoption of the plan should be quashed on the grounds that: (i) the decision-making process leading to its adoption had been unlawful, as it had failed to comply with EC Council and Parliament Directive 2001/42 (the SEA directive) (on the assessment of the effects of certain plans and programmes on the environment), particularly because the process by which the plan had been adopted had failed properly to identify, describe and evaluate all reasonable alternatives on a comparable basis to the plan; and (ii) the Minister had failed to take reasonable steps to further the conservation and enhancement of the flora and fauna of the SSSI over which the proposed route ran, as required by section 28G of the Wildlife and Countryside Act 1981.
Held: The application was dismissed.
(1) Reasonable alternatives were options which were considered by the decision-maker to be viable in the sense of being capable of meeting the objectives to which the decision-maker was working to such an extent that that option was viable. The problems with the M4 around Newport that the defendants had sought to address, and the government’s aims and objectives in respect of them, had not materially changed over the material period. On the facts, the claimant could not begin to make good its contention that the defendants had failed to include in the strategic environmental assessment (SEA) report and process reasonable alternatives that ought to have been included. They had used the correct legal tests throughout, choosing the option which they had considered best met the transport planning objectives as the reasonable alternatives. The decisions they had made with regard to selection of objectives, the weight given to each objective chosen, and the selection of preferred option and reasonable alternatives had all been in accordance with the relevant legal tests, rational and otherwise lawful. They had explained, having given at least outline reasons, why they had selected their preferred option and reasonable alternatives.
Furthermore, it had not been irrational to base the SEA report on the premise that no option that had not involved a high-quality road across the SSSIs had been capable of achieving the transport planning objectives. The defendants had not simply treated harm to the SSSIs as inherently unavoidable nor misunderstood the scope of “reasonable alternatives” for the purposes of article 5(1) of the SEA Directive. All options capable of achieving the transport planning objectives had been included in the SEA report and the alternative relied on by the claimant had been rationally considered to be incapable of achieving the transport planning objectives. The defendants had more than adequately explained why they had considered other options would not achieve the transport planning objectives and had been entitled to act on the basis of the evidence before them and the widely accepted methodology employed in relation to the impact of planned public transport improvements: R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin), Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 145, Ashdown Forest Economic Development LLP v Secretary Of State For Communities and Local Government and others [2014] EWHC 406 (Admin) and R (on the application of Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 1877 (Admin); [2014] EWCA Civ 1393; [2014] PLSCS 295 considered.
(2) The duty under section 28G of the 1981 Act did not seek to protect SSSIs by weighting the desirability of their protection as against other factors, but by requiring relevant authorities to take reasonable steps to further the conservation and enhancement of the flora, fauna, geological or physiographical features by reason of which the site was of special scientific interest. None of the options that had not involved a highway across the SSSIs had come anywhere hear achieving the objectives. The do-minimum scenario had also been discounted on the environmental unacceptability of the status quo. It was simply not maintainable that the Minister had not been sensitive to the harm, and to the importance of mitigating and minimising it. She had clearly paid the SSSIs and the desirability of preserving and protecting them the regard required of her and had not arguably erred in that regard: Archibald v Fife Council [2004] UKHL 32 applied, Garner v Elmbridge Borough Council [2011] EWHC 86 (Admin); [2011] PLSCS 32 considered.
Alex Goodman and Matthew Dale-Harris (instructed by Deighton Pierce Glynn) appeared for the claimant; Jonathan Moffett and Tom Cross (instructed by Geldards LLP) for the defendants.
Eileen O’Grady, barrister
