Planning: Failure to consider alternatives invalidated Core Strategy Policy

In preparing a Core Strategy for planning a Council is required to carry out an environmental assessment in accordance with The Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”) which implement EU Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (“the SEA Directive”). SEA Regulation 12 provides that any environmental assessment required by Part 2 of the Regulations, the responsible authority shall identify, describe and evaluate the likely significant effects on the environment of:

(a) implementing the plan or programme; and

(b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.

Regulation 16 provides that as soon as reasonably practicable after the adoption of a plan or programme, the responsible authority shall (amongst other things) provide information as to “the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with”.

The requirement to assess reasonable alternatives applies most obviously to matters such as the type of development proposed or the selection of areas for development. It can relate to the plan or programme as a whole or to specific policies within the plan or programme. It can apply to a policy directed specifically towards ensuring that the environment is not harmed by development provided for by the plan.

Where a preferred option – e.g. for the location of development – emerges in the plan-making process, the reasons for selecting it must be given. A failure to give reasons for the selection of the preferred option may amount to a failure to give reasons why no other alternative sites were selected for assessment or comparable assessment at the relevant stage of plan making which would itself be a breach of the SEA Directive.

Although there may appear to be a case for examining the preferred option in greater detail, the aims and requirements of the Directive require an equal examination of all the alternatives which it is reasonable to select for examination alongside the preferred option.

In the recent Court of Appeal case of Ashdown Forest Economic Development LLP v Wealden District Council & Anor [2015] the appellant brought a claim under section 113 of the Planning and Compulsory Purchase Act 2004 seeking to quash part of the local Core Strategy.

The appellant challenged policy WCS12 of the Core Strategy allowing new housing development within 7 km of Ashdown Forest, contending that it was adopted in breach of the Council’s duty under the SEA Directive.

The defence argued that neither Natural England nor the Council’s environmental consultants had suggested there was any alternative that might be suitable and should be examined further, nor did anyone raise a sustained or developed argument in for a different solution in the course of the development of the Core Strategy.

The court accepted that the identification of reasonable alternatives was a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including it being a policy no reasonable authority properly advised could have come up with (“Wednesbury unreasonableness”).

However, in order to make a lawful assessment, the authority did at least have to apply its mind to the question.

The court concluded that, in so far as it related to the 7 km zone, policy WCS12, was adopted in breach of the duty under regulation 12 of the SEA Regulations relating to the assessment of reasonable alternatives.

Here there was no evidence that the Council gave any consideration to the question of reasonable alternatives to the 7 km zone.

Had the Council formed a judgment that it was inappropriate to “drill down” into the plan as far as the specific details of policy WCS12 for the purpose of identifying alternatives, or that there were no reasonable alternatives to the 7 km zone, then it would be in a relatively strong position to resist the appellant’s claim. But in the absence of any consideration of those matters, it is in a very weak position to do so.

it was the duty of the Council to consider the issue of reasonable alternatives. Had the Council considered the question, it might have concluded that there were no reasonable alternatives, and have given reasons in support of that conclusion. The fact that nobody suggested alternatives could not validate the Council’s failure to consider the question at all.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.