Planning: Core Strategy preparation cured early defects in sustainability approach

Article 3 of the SEA Directive requires a strategic environmental assessment of certain plans and programmes, including a local planning authority’s Core Strategy draft Development Plan Document (“CS”).

In the case of No Adastral New Town Ltd v Suffolk Coastal District Council & Anor [2015] the Court of Appeal upheld the High Court judgement (q.v.).

The High Court Judge had found two deficiencies in the SEA process, namely:

(i) the failure to carry out an SEA early in the preparation of the CS, prior to the Preferred Options consultation, and

(ii) the failure to consult on the alternative options to the disputed “Area 4” when an increase in housing allocation to 2000 dwellings was proposed.

But the High Court Judge found that each of those two deficiencies was later cured and that the requirements of the SEA Directive and implementing regulations had been fulfilled with by the time the draft CS was submitted for examination by the inspector in anticipation of its adoption.

However the appellants said on appeal:

(a) as a matter of law, the earlier deficiencies were incapable of being cured later in the process, and

(b) in fact, they were not so cured.

The Court of Appeal found against them (a) and (b).

When the Council decided to proceed with the CS, it was fully informed of the environmental implications on all alternative areas and knew the outcome of the public consultation as to the effect of 2000 dwellings on all 5 of the original option areas.

The judge had been right to find that the earlier deficiencies in the SEA process had been cured.

Under the Habitats Directive any plan or project:

– not directly connected with or necessary to the management of a site but

– likely to have a significant effect on it, either individually or in combination with other plans or projects,

shall be subject to appropriate assessment (“AA”) of its implications for the site in view of the site’s conservation objectives.

Screening assessments are carried out to determine whether a full AA is required

The second ground of challenge was that the Council was in breach of the Habitats Directive by not carrying out an initial screening assessment until too late in the CS process.

In the legislative material examined by the Court of Appeal it could not see even an obligation to carry out a screening assessment, let alone any rule as to when it should be carried out.

If it is not obvious whether a plan or project is likely to have a significant effect on a Special Protection Area (“SPA”) like this, it may in practice be necessary to carry out a screening assessment in order to ensure that the substantive requirements of the Habitats Directive are ultimately met.

It may be wise, and likely to reduce delay, to carry one out an early stage of the decision-making process. However there was no obligation to do so.

So there was no breach of the Habitats Directive by failing to carry out a screening assessment in this case until well into the process.

A full AA was in fact carried out and led to a properly based conclusion that the allocation of housing proposed in the CS would not have an adverse effect on the integrity of the SPA. That met the relevant requirements of the Directive.

The third ground of challenge was that the Council had breached Article 6 of the Habitats Directive by leaving mitigation measures over for assessment at the later stage of the Area Action Plan or specific planning applications, in circumstances where sufficient information had been available to assess the effectiveness of such measures at the CS stage.

To leave matters of mitigation to lower-tier plan-making or specific project stages was claimed to be contrary to the scheme of the Directive if the relevant information had been known at an earlier stage.

The Court of Appeal said the important question was not whether mitigation measures were considered at the CS stage in as much detail as the available information allowed, but whether there was sufficient information at that stage to enable the Council to be satisfied that the proposed mitigation could, in practice, be achieved.

There was an obligation to have continuing regard to the avoidance of harm to the SPA at all subsequent stages of the planning process.

If some unforeseen adverse impact was subsequently identified which could not be resolved by mitigation, the development would be cut back to the extent necessary to ensure that there would be no adverse effect on the integrity of the SPA.

That was a sensible precautionary measure in a CS that set the framework for development until 2027.

That sort of an approach was in accordance with Article 6 of the Habitats Directive, not in breach of it.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.