The Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”) transpose into domestic law Directive 2011/42/EC on the assessment of the effects of certain plans and programmes on the environment (“the SEA Directive”). Strategic environmental assessment may be required, for instance, in the case of local development documents and local development plans.
Regulation 8 of the SEA Regulations prohibits the adoption of a plan or programme until there has been compliance with, among 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”. Schedule 2 to the SEA 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 Ashdown Forest Economic Development Llp v Wealden District Council [2015] EWCA Civ 681, the appellant had challenged under section 113 of the Planning and Compulsory Purchase Act 2004 (unsuccessfully at first instance) the adoption by the local planning authority (“LPA”) of a core strategy. The challenge was restricted to part only of a single policy (“the Policy”) contained within it. The purpose of the Policy was to avoid the adverse effect on the integrity of the Ashdown Forest Special Protection Area and Special Area of Conservation by defined measures to reduce the recreational impact of visitors resulting from new housing development within seven kilometres of Ashdown Forest. The ground of challenge was that the LPA had failed to comply with the requirements of regulation 12 of the SEA Regulations by omitting to assess reasonable alternatives to a seven-kilometre zone.
Before the Court of Appeal, one of the appellant’s principal arguments was that the judge at first instance had been wrong to find that the reasons why alternatives were not chosen were implicit in the reasons given for choosing a seven-kilometre zone; given the nature of the exercise (the ruling out of risk) the choice of a seven-kilometre zone did not mean that there were no alternatives. The LPA contended that it had a discretion to identify what, if any, reasonable alternatives there were; this was a matter of judgment, subject to challenge only normal public law principles.
The court held that the Policy, in so far as it related to the 7 kilometre zone, had been adopted in breach of the duty arising under regulation 12 of the SEA Regulations, and it made a quashing order. To make a lawful assessment, the LPA did at least have to apply its mind to the question. There was no evidence that the LPA gave any consideration to the question of reasonable alternatives to the seven-kilometre zone.
John Martin is a planning law consultant
