July 10, 2008

Verdict Raises Questions on Strategic Assessment

By Winter, Paul

LEGAL REPORT Mr Justice Newman's February High Court ruling on a case from South Gloucestershire is the first decision from the English courts on the strategic environmental assessment (SEA) directive.

R (Howsmoor Developments and Others) v South Gloucestershire Council concerned a strategic mixed-use development at Emersons Green East. The site was allocated in a local plan pre-dating the SEA regime, which came into force in July 2004 under European Directive 2001/42/ EC. The claimants challenged a supplementary planning document (SPD) setting out site-specific guidance on the development.

The SPD stated that the council would only grant outline planning permission for development that complied with the planning brief. This set out highly specific criteria for the provision of a multi- modal interchange and required an additional footbridge to be provided on a particular part of the land.

Claimants' argument rejected

The claimants, who own most of the site, argued that the council's environmental report failed to comply with the SEA directive because it did not provide the information required under annex 1. However, Mr Justice Newman rejected their arguments and dismissed the application, holding that the council had complied with the directive.

He took into account the stage that the SPD occupied in the planning process and found that policies and allocations in the local plan should not be subjected to retrospective assessment under the SEA regime. The detailed environmental issues would be dealt with adequately through the environmental impact assessment (EIA) of planning applications for the site, he held.

He found that the local plan had already created the policy framework for the development, including the interchange and the additional footbridge. In that light, he was satisfied that the greater detail provided in the SPD on the locational criteria for the interchange and the requirements for the bridge were not new proposals or allocations and did not need to be subjected to SEA.

Last year, in Seaport investments Ltd and Others v Department of the Environment for Northern Ireland, the High Court of Justice in Northern Ireland declared the legal principle that there should be substantial compliance with the requirements of the SEA directive through the provision of the environmental information specified in annex 1 (Planning, 14 September 2007, p1).

The claimants cited that case in their court submissions on the South Gloucestershire proceedings. By finding that the brief was merely giving expression to existing local plan policies and allocations and that no retrospective assessment of the proposals was required, Mr Justice Newman effectively sidestepped the Seaport case in his judgement.

However, carried to a logical conclusion, it is difficult to see how this finding is consistent with the statutory requirement for SPDs to be subjected to sustainability appraisal and to the SEA directive. By definition, SPDs cannot lawfully allocate sites for development and must be underpinned by policies or allocations in development plan documents.

If the council took the view that the SPD was required to give detailed expression to the broad policies in the local plan, and the SEA regime applied to it, then it could be argued that the detailed guidance in the brief should be the subject of an environmental report that satisfies annex 1 of the directive.

Environmental ruling queried

The court's conclusion that subsequent EIAs would provide adequate assessment in place of SEA of the brief is also questionable. Postponing the more detailed assessment of environmental impacts to the planning application stage may avoid the important consideration of reasonable strategic alternatives, which is a key requirement of the SEA directive but not of the EIA directive.

As the first judgement in England and Wales on SEA and its application to SPDs, this case might have provided useful clarification about the SEA process both for local planning authorities promoting SPDs and for developers seeking to understand the minimum standards of environmental assessment with which they can expect authorities to comply.

Instead, the verdict raises more questions than it answers, leaving interested parties even more uncertain about circumstances in which SPD policies should be subjected to SEA and the extent to which councils must comply with the directive.

Paul Winter is a partner and Marcus Bate is a solicitor at Eversheds LLP.

Copyright Haymarket Business Publications Ltd. Jun 20, 2008

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