ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mrs Justice Patterson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
LORD JUSTICE BRIGGS
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(1) Suffolk Coastal District Council
(2) Secretary of State for Communities and Local Government
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Paul Shadarevian and Emma Dring (instructed by Suffolk Coastal District Council Legal Services) for the First Respondent
The Second Respondent did not appear on the appeal
Hearing dates : 21-22 January 2015
Crown Copyright ©
Lord Justice Richards :
The legal framework
The Planning and Compulsory Purchase Act 2004 Act
i) The local planning authority must carry out an appraisal of the sustainability of the proposals in the document (a sustainability appraisal or "SA") and prepare a report on the findings of the appraisal.
ii) Before submission to the Secretary of State (see below), a development plan document must be published and consulted upon.
iii) A development plan document must be submitted to the Secretary of State for independent examination, the purpose of which is to determine whether the document satisfies the procedural requirements relating to its preparation and whether it is sound. The independent examination is carried out by an inspector who holds an inquiry and produces a report.
iv) The decision whether to adopt the development plan document is that of the local planning authority but its powers are constrained by the recommendations in the inspector's report.
The SEA Directive
"165. … A sustainability appraisal which meets the requirements of the European Directive on strategic environmental assessment should be an integral part of the plan preparation process, and should consider all the likely significant effects on the environment, economic and social factors.
166. Local Plans may require a variety of other environmental assessments, including under the Habitats Regulations where there is a likely significant effect on a European wildlife site …. Wherever possible, assessments should share the same evidence base and be conducted over similar timescales, but local authorities should take care to ensure that the purposes and statutory requirements of different assessment processes are respected."
The Habitats Directive
"2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the area have been designated, in so far as such disturbance could be significant to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4 [cases where a plan or project must be carried out for imperative reasons of overriding public interest], the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
The "appropriate assessment" required by Article 6(3) is generally referred to in the documentation and in the judgment below as an "AA" and I shall adopt that abbreviation.
"Where a land use plan –
(a) is likely to have a significant effect on a European site … (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of the site,
the plan-making authority for that plan must, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site's conservation objectives."
The process leading to the adoption of the CS
"Any development is likely to bring additional pressure to any of the sites of European interest, however the area near Martlesham identified as a 'preferred option' could have particularly negative impacts upon the Deben Estuary SPA/SSSI. Site-specific Appropriate Assessment will reveal further any issues."
"6.2.45 Provided that strategic housing proposals for development at Martlesham and Felixstowe Peninsula are greater than 1 km from the Deben Estuary and Orwell Estuary respectively, together with improvements in accessibility to greenspace provision, it is unlikely that visitor recreation activity would substantially increase on the foreshore of those estuaries. It is therefore concluded that there would be no adverse affect [sic] upon the integrity of the respective European sites."
The section on mitigation included a tabular summary which identified the relevant impact as "New large-scale increase in car-borne trips for recreation on European sites causing harm to features of European interest, primarily for sites with car parking within 8 km". The mitigation proposed had two elements:
"Improvements to convenient local greenspace for routine use thus reducing the demand for visits to European sites.
The provision of a new Country Park (or similar high quality provision) to provide an alternative attraction for recreational activity for residents of existing and proposed new dwellings. This new Country Park will be attractive to dog walkers and others and include adequate provision for car parking, visitor facilities, dog bins, dogs off leads areas etc."
The conclusion was that with the proposed mitigation the relevant housing policies would have no adverse effect upon the integrity of any European site.
"4.16 … The Core Strategy has been subject to Sustainability Appraisal and Appropriate Assessment both of which consider that the broad scale and distribution of development can be successfully mitigated. However, should the more detailed Appropriate Assessment of the Area Action Plan conclude that part of the Strategy cannot be delivered without adverse impacts on the Deben Estuary SPA which cannot be mitigated, then the Area Action Plan will only make provision for the level and location of development for which it can be concluded that there will be no adverse effect on the integrity of the SPA, even if this level is below that in the strategic allocation."
"(xii) the Council will require further proposals to be supported by an Appropriate Assessment to meet the requirements of the Habitats Regulations. If the results of the Appropriate Assessment show that part of the Strategy cannot be delivered without adverse impacts on designated European sites which cannot be mitigated, then the proposals will only make provision for the level and location of development for which it can be concluded that there will be no adverse effect on the integrity of a designated European nature conservation site."
"… The November 2011 Appropriate Assessment and the mitigation measures it contains … will provide the basis for more detailed project level assessments associated with the Area Action Plan and planning application proposals and associated cumulative impacts. Those measures will be required to reflect the objectives set which include the creation of alternative opportunities for countryside recreation for existing and future residents as a preferred alternative to visiting European nature conservation sites; improved visitor infrastructure including wardening; and monitoring to quantify reductions in visitor harm achieved by mitigation projects.
Specifically, on land to the south and east of Adastral Park, strategic open space in the form of a country park or similar high quality provision will be required to mitigate the impact of development at this site and the wider cumulative impact of residential development on the relevant designated European nature conservation sites."
Ground 1: compliance with the SEA Directive
Patterson J's judgment
"118. The wording of the domestic Regulations, read in the context of the Directive, make it clear that the environmental assessment of a draft plan should be an ongoing process. The objective is to ensure that the environmental effects of emerging policies can be taken into account while plans are actually being "developed". To enable that to occur the process of preparing the environmental report should start, as the Commission says in its guidance, as early as possible, and ideally, at the same time as the preparation of the plan or programme.
119. That does not mean that there is an absolute rule that the plan and the environmental report proceed in parallel so that there is a requirement for simultaneous publication of the draft plan and environmental report. What it does mean though, in my judgement, is that there should be an integrated process whereby the environmental report assesses the emerging plan and the subsequent iteration of that plan has regard to the contents of the environmental report and public consultation on both documents. Whilst there is some flexibility in the process the objective of the Directive can only be met properly by taking into account an environmental report on the environmental effects of the policies in a draft plan as the policies develop. What is required may vary according to the plan being promoted and the stage that it has reached."
"124. The matter, though, does not end there. In December 2008 the defendant published the Core Strategy and Development Control policies Preferred Option document with option 4 as the preferred option for 1050 houses. The latter document was accompanied by a SA and a scoping and screening report for an AA to be carried out under the 2010 Habitats Regulations. That clearly recorded the nature conservation significance of the Deben Estuary. The potential negative impact as a result of visitor pressure was clearly noted. Further consultation took place with that information clearly in the public domain.
125. When the results of the consultation exercise were considered by the LDFTG on 16th June 2009 their decision to proceed with the housing allocation on the Area East of Ipswich was thus a well and properly informed decision."
"128. The increase in the allocation on SP20 to 2000 houses was, in my judgment, a material change of circumstances. It would have been better, therefore, to have consulted as part of the September 2009 consultation on the effect of the additional dwellings at the original alternative option sites. However, an assessment of the alternative option sites was carried out in January 2010 for 2000 houses on each of the original options 1-5 in the [Eastern Ipswich Plan Area]. All of the options were assessed as having strongly negative impacts for bio-diversity. The overall assessment recorded,
'The updated appraisal looking at 2000 houses suggests area 4 is very marginally the least sustainable however all areas will require new investment in infrastructure and generate similar concerns for cumulative impact upon Natural 2000 designations.'"
"129. The claimant contends that because of the 2 significant errors the entire SEA process was vitiated. As is clear I do not accept that submission for the following reasons:-
(i) the individual decisions complained about were corrected by the defendant before the plan was adopted as set out above;
(ii) the decision to increase the housing numbers on SP20 to 2000 was taken on valid grounds taking into account environmental considerations as part of a classic planning judgement. There is no basis for separating out environmental considerations;
(iii) when the council made the decision on the 18th March 2010 to proceed with the Development Plan it was fully informed about the environmental implications on all alternative sites and the results of the public consultation on the effect of 2000 houses on all 5 of the original option sites;
(iv) the pre-submission draft Development Plan included an updated SA which dealt with the main issues raised on housing distribution, the alternative sites which had been considered, and the increase in housing numbers at SP20 including their environmental impact. Although the claimant criticises that document and that in August 2011, which also went out for consultation, on the basis that they create an unacceptable paper chase the situation is very different from the case of Berkeley v Secretary of State for the Environment  3 WLR 420 which the claimant relies upon. In that case there was no environmental assessment at all. In the instant case there was a complete reference back to earlier documents and the reasons for rejecting earlier options. Applying the test of Collins J in Save Historic Newmarket Limited v Forest Heath  EWHC 606 at  … [t]he consultees were well aware of the reasons for rejecting the alternatives to the development that was proposed here.
(v) The inspector considered whether the CS was sound in his report. He considered that it was for reasons set out in paragraphs 16-27 … of his report to the defendant. His report was fully reasoned and took into account all material considerations, including the development of the CS and the various legal judgments that were delivered during its preparation. It has not been criticised by the claimant;
(vi) The council had sufficient and good reasons to act as it did as set out above. It, therefore, acted rationally at the critical stage of the Development Plan."
The issues in the appeal
"112. … First, it should be noted that 'Strategic Environmental Assessment' is not a single document, still less is it the same thing as the Environmental Report: it is a process, in the course of which the Directive and the Regulations require production of an 'Environmental Report'. Hence, art 2(b) of the SEA Directive defines 'environmental assessment' as:
'the preparation of the environmental report, carrying out consultations, the taking into account of the environmental report and the results of the consultations in the decision making and the provision of information on the decision in accordance with Articles 4 to 9'.
113. Furthermore, although arts 4 and 8 of the Directive require an 'environmental assessment' to be carried out and taken into account 'during the preparation of the plan', neither article stipulates when in the process this must occur other than to say that it must be 'before [the plan's] adoption'. Similarly, while art 6(2) requires the public to be given an 'early and effective opportunity … to express their opinion on the draft plan or programme and the accompanying environmental report', art 6(2) does not prescribe what is meant by 'early', other than to stipulate that it must be before adoption of the plan. The Regulations are to similar effect: reg 8 provides that a plan shall not be adopted before account has been taken of the environmental report for the plan and the consultation responses."
"125. I also consider … that the claimant's approach would lead to absurdity, because a defect in the development plan process could never be cured. The absurdity of the claimant's position is illustrated by considering what would now happen if the present application were to succeed, with the result that Policies H1, H2 and H3 were to be quashed. In those circumstances, if the claimant is correct, it is difficult to see how the defendant could ever proceed with a Core Strategy which preferred West Rochford over East. Even if the defendant were to turn the clock back four years to the Preferred Options stage, and support a new Preferred Options Draft with an SA which was in similar form to the Addendum, the claimant would, if its main submission is correct, contend that this was simply a continuation of the alleged 'ex post facto rationalisation' of a choice which the defendant had already made. Yet if that choice is on its merits the correct one or the best one, it must be possible for the planning authority to justify it, albeit by reference to a document which comes at a later stage of the process."
"[it is] an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the 'full information' about the environmental impact of a project. The Regulations are not based on such an unrealistic expectation. They recognise than an environmental statement may be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations … but they are likely to be few and far between."
Ground 2: the timing of the AA under the Habitats Directive
Ground 3: the issue of mitigation under the Habitats Directive
"49. The United Kingdom Government is admittedly right in raising the objection that an assessment of the implications of the preceding plans cannot take account of all the effects of a measure. Many details are regularly not settled until the time of final permission. It would also hardly be proper to require a greater level of detail in preceding plans or the abolition of multi-stage planning and approval procedures so that the assessment of implications can be concentrated on one point in the procedure. Rather, adverse effects on areas of conservation must be assessed at every relevant stage of the procedure to the extent possible on the basis of the precision of the plan. The assessment is to be updated with increasing specificity in subsequent stages of the procedure."
In that passage the Advocate General was saying no more than that the extent of detail of an assessment will depend on the precision of the plan, so that increased specificity will be required as one moves through the various stages of the approvals procedure. She was certainly not addressing the question whether mitigation measures must be considered at each stage of the procedure in as much detail as the available information permits.
"152. The fact that the inspector was familiar with the proposed modification to SP20 and was satisfied that it could be incorporated within a sound plan meant that he was content that the proposed mitigation was practical and sufficiently certain for the plan stage. The main modifications procedure involves another SA and a further round of public consultation. The public, therefore, had every opportunity to comment, including the claimant. The inspector chose not to re-open the examination. He must have been satisfied, therefore, that the proposed modification in light of the representations was sound.
153. The claimant makes no criticism of the inspector's report for being irrational or, in itself, in error.
155. Although the claimant asserts that Natural England carried out a volte face it is clear from a reading of the correspondence that they were involved in the plan making process throughout by the defendant and altered their initial position in the light of further evidence, including that within the BT planning application. They confirmed that they were satisfied that the final documents were adequate and that their comments had been adequately incorporated …. In those circumstances, the inspector was quite justified in coming to a decision that the mitigation was sufficiently certain for Development Plan purposes ….."
Lord Justice Underhill :
Lord Justice Briggs :