Case No: CO/4433/2014
Neutral Citation Number:  EWHC 776 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Date: 26 March 2015
Mr Justice Hickinbottom :
Ground 1: The decision-making process that led to the adoption of the Plan was unlawful, in that, in a number of respects, it failed to comply with European Council and Parliament Directive 2001/42/EC, commonly known as the Strategic Environmental Assessment Directive ("the SEA Directive"), implemented in Wales by the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 (SI 2004 No 1656) ("the 2004 Regulations"). Several sub-grounds are pleaded; but the foundation of the Claimant's case is that the process by which the Plan was adopted failed properly to identify, describe and evaluate all reasonable alternatives (and particularly alternatives that did not involve a motorway being constructed across the protected sites) on a comparable basis to the Plan. The SEA Directive requires assessment of the significant environmental effects of, not only the preferred option, but of all potential viable alternatives. The preferred plan and all of the alternatives canvassed in the SEA Report involve a highway crossing the Gwent Levels. Because the vital decision – to put a highway across the protected sites – had been already been taken before the SEA process began, the Minister, without any environmental assessment as required by the SEA Directive, foreclosed the possibility of adopting a plan that did not involve such a highway; and, thus, the SEA Directive's objective of integrating environmental considerations into the preparation and adoption of plans was frustrated. This ground raises starkly the issue of what is meant by "reasonable alternatives" in the SEA Directive.
Ground 2: In adopting the Plan, the Minister failed to take reasonable steps to further the conservation and enhancement of the flora and fauna of the SSSIs over which the proposed route runs, as required by section 28G of the Wildlife and Countryside Act 1981.
Ground 3: The Plan failed to take into account the Welsh Government's own policies with regard to reduction of carbon emissions.
The SEA Directive
"31. The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.
32. The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures (Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment, COM (96) 511 final, page 6). Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context.
33. An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included."
"The aim of the [SEA] Directive is not to ensure that all development proposals which will have major environmental effects are preceded by [an SEA]; rather, it is to ensure that future development consent for projects is not constrained by decisions which have been taken 'upstream' without such an assessment, thus pre-empting the environmental assessment to be made at project level."
The Gwent Levels SSSIs
Traffic Forecasting Methodology
"• To assist in the development of proposals to enable the most appropriate scheme to be identified and progressed – one that is focused on objectives, maximises the benefits and minimises the impacts; and
• To allow the comparison of competing schemes on a like-for-like basis, so decision-makers can make difficult funding decisions."
It is therefore made clear from the outset that the process is "focused on objectives".
"WelTAG aims to ensure that transport proposals contribute to the wider policy objectives for Wales. Three pillars of sustainability, known as the Welsh Impact Areas, underlie policy in Wales. These are:
• Economy: this reflects the importance of a strong and developing economy for Wales;
• Environment: this reflects both the legal requirements and desire to protect and enhance the condition of the built and natural environment; and
• Society: this reflects the desire to address issues of social exclusion and to promote social justice and a high quality of life for Welsh people."
"• A planning stage which includes problem identification/proposal rationale, objective setting (these are interactive processes), option development and testing;
• An appraisal stage, which involves a two-stage process;
• A post appraisal stage which involves both on-going monitoring of performance and evaluation/value for money assessment; and
• Participation (including consultation), which occurs at several stages in the planning process (from setting objectives through to proposal appraisal and quite possibly implementation) and should start being considered from the outset."
"4.2.2 Good practice in transport planning requires that the planning of any transport intervention is objective-driven. The planner starts by establishing the final outcomes to be achieved, which are formulated as Transport Planning Objectives (TPOs), and then develops solutions – which will help to achieve these objectives.
4.2.3 Therefore, the planning process starts from problems and opportunities, then sets objectives, and then identifies the best ways of achieving these. An important implication of this is that the planner has to consider a diverse range of alternatives, and not start from an implicit objective of promoting a particular proposal. A planner who thinks that WelTAG is simply a new hoop through which to get their preferred proposal is missing the point of transport appraisal and this guidance."
The guidance stresses that the starting point of the process is "the identification of transport problems [such as traffic congestion], constraints and opportunities…" (paragraph 4.3.1), and that TPOs setting out what it is sought to be achieved "underpin the whole development and appraisal process by allowing the planner to test whether or not a proposal is likely to succeed in addressing the identified problems…" (paragraph 4.4.1). The process is therefore underpinned by the TPOs, as well as the Welsh Impact Areas.
"Stage 1 is always required and has the primary purpose of testing and screening options.
Stage 2 is only applicable to schemes and provides a fuller, more evidence based, appraisal of the options selected for future development by Stage 1."
The Evolution of the Plan
"Since then, no one has credibly suggested that a route to the north of Newport would be appropriate."
The Claimant does not suggest that the Minister (or her predecessors) erred in not considering northern options further.
"There is a clear need for additional capacity along the M4 corridor in South-East Wales, essentially to reduce congestion along this strategic gateway and remove the obstacles to greater prosperity the length of the M4 corridor through to Swansea and West Wales…. The changes to the 1997 Protected Route offer a clear benefit to the environment by taking the route northwards and where possible onto land previously of industrial use thereby reducing its impact on the Gwent Levels including the [SSSIs]".
That same day, a revised TR111 Notice was published, replacing the 1997 Notice, to protect the revised preferred C4 Route (which is essentially "the Black Route" eventually adopted in the Plan: see paragraph 54 below).
"Deliver a package of measures designed to improve the efficiency of the M4 in South-East Wales, including public transport enhancements, making the best possible use of the motorway and improving the resilience of the network."
This became known as the M4 Corridor Enhancements Measures ("CEM") Programme.
"In order to achieve the above [i.e. the TPOs], Arup was asked to investigate potential schemes to improve the operation of the existing M4 around Newport, as part of the New M4 Project. Such schemes are to be implemented as interim measures to:
• Make best use of existing infrastructure and capacity;
• Improve the resilience of the network; and
• Improve public transport.
A strategy was thus required to embrace the above three themes and to ensure that any measures put forward would contribute effectively to one or more of those themes." (emphasis added)
It was therefore recognised that, in due course, a longer-term solution to the identified problem would or may be required. However, future funding (even after the five years of the 2010-15 plan) was far from guaranteed; and Mr Bates (at paragraph 52 of his statement) accepts that:
"The M4 [CEM] Programme was therefore initiated by the Welsh Government and this aimed to create an affordable package of measures which could be delivered in phases as an alternative to a new motorway, to deal with the capacity, resilience, safety, and sustainability problems on the M4 around Newport." (emphasis again added).
"No single solution delivers all the Goals, but through this methodology, measures that contribute towards a combination of compatible options, or 'Packages', have been identified. The Packages combine public transport, highway and other travel solutions.
The strategic approaches adopted by the Welsh Government to reduce congestion and to delivering the M4 CEM Goals all involve creating some new highway capacity on the M4, and/or elsewhere in the highway network between Magor and Castleton. However traffic congestion will not simply disappear as a result of capacity increase. This is because the development of new or up-graded, convenient and reliable roads tends to encourage more people on to them. This results in additional vehicles using additional road capacity (not a stable volume of vehicles using more/emptier roads).
To avoid this and to curb the rising demand for more highway capacity and to out transport onto a carbon reduction pathway, the M4 CEM Programme proposes increasing and improving the opportunities for access, and for travel and transport using alternative modes, such as trains and buses (public transport), cycling and walking. We also propose minimising the need for certain types of journey.
To enable the sustained productivity and competitiveness of Wales, and the South East Wales region in particular, highway infrastructure must also be developed…".
i) Option A: The construction of a new, high quality dual carriageway road south of Newport through the Gwent Levels SSSIs. Although the cost was estimated at £830m, unlike a motorway it could be delivered in phases.
ii) Option B: Improvements to the SDR from M4 Junctions 24 to 28, mainly by the removal of (and improvements to) traffic islands on that road. The improvements would be "at-grade", i.e. at the same level as the main road, at an estimated cost of £45m.
iii) Option C: Grade separated junction improvements to the same A48 road, i.e. the alignment of junctions at different levels by using (e.g.) flyovers or underpasses, at an estimated cost of £300m.
iv) Option D: Widening of the M4 between Junctions 24 and 29 to four lanes per carriageway, including providing an additional tunnel at Brynglas at an estimated cost of £550m.
i) Option B: It said that Option B "would have little impact on the [Brynglas] tunnel traffic, and slightly reduces the total across the Usk screenline (indicating network disbenefit)"; and concluded that "no relief is likely to be provided to motorway congestion under Option B". It consequently recommended that Option B should not be taken forward for further appraisal.
ii) Option C: It was acknowledged that Option C would likely have some benefits, but these would not be focused on relief to the motorway. Transport modelling indicated "very little relief to motorway congestion as a result of Option C". Option C "would reduce traffic through the tunnel by about 9% in the opening year, although by 2035 the tunnel traffic volume would still be over 10% higher than the 2020 Do-Minimum total" and "by the design year (2035) analysis has shown that the traffic levels through the Brynglas tunnels under Option C would be reduced by only some 4% compared to a do-minimum scenario". It consequently recommended that Option C should not be taken forward.
iii) Option D "would increase the volume of traffic through the tunnels by about 20,000 vehicles per day (20%) in 2035". There would of course be four-lane carriageways through the tunnels, which was an inherent part of the option; but that would simply mean that the pinch-point would be moved westwards to Junction 28. The appraisal said: "Option D would be expected to experience capacity problems on the motorway west of the tunnels by the design year…", with the section of motorway between Junctions 26 and 27 operating at 106% capacity which was "likely to result in severe operational problems". It consequently recommended that Option D should not be taken forward.
"Option A has a much greater effect on reducing traffic volumes through the Brynglas Tunnels than either of the SDR improvement options, with a reduction of over 50% in the opening year. It also produces the highest total volume of traffic crossing the Usk screenline, suggesting that it offers greater capacity/network resilience than other options."
Option A was referred to as "the favoured option"; but the final conclusion of the appraisal was that only Option A, together with public transport enhancement and common measures, was "worthy of further consideration and more detailed appraisal". Public transport measures would have no material effect on the M4 problem (and should be considered in a different forum), and common measures were only supportive. The only option that addressed the identified problems was the highway option, Option A.
"As a result of ongoing discussions with the UK Government there has been a significant change in the assessment of the affordability of a major enhancement of the M4.
Building on the extensive development and consultation work undertaken on M4 [CEM], we will be consulting formally over the summer with [the NRB] in order to go out to public consultation this September with a finalised draft Plan and [SEA] Report.
If implemented, the draft Plan would lead to a motorway being built south of Newport."
"… the availability of funding, which enabled a solution to the problems on the M4 to be delivered in a single phase. The problems faced and the potential options for solving them had otherwise not changed." (paragraph 76 of his statement).
The problems sought to be addressed had not changed. Nor had the objectives: the TPOs were reappraised, but were considered still to be "wholly relevant" (paragraph 1.3 of the June 2013 WelTAG Appraisal); and did not change at all from the March 2012 CEM Consultation/March 2013 WelTAG Appraisal.
"[N]o relief is likely to be provided to motorway congestion under Option B….
Whilst Option C would be likely to result in benefits, these would not be focused on relief to the motorway. By the design year (2035), analysis has shown that the traffic levels through the Brynglas tunnels under Option C would be reduced by only some 4% compared to a do-minimum scenario….
Traffic forecasts for Option D have indicated that, by the design year (2035), the section of motorway between Junction 26 and Junction 27 is likely to be operating some 6% above capacity in the westbound direction during weekday PM peak. This would be likely to result in severe operational problems. The lack of an alternative route will thus result in motorway capacity problems and network resilience issues."
The change in available funding – the only change since March 2013 – did not improve any of those options.
i) "The Red Route": In essence, Option A from the earlier appraisal. A new section of dual carriageway to the south of Newport following the route of Option A in the March 2013 Appraisal.
ii) "The Purple Route": A new three-lane motorway to the south of Newport along a similar route to the Red Route, albeit with minor differences to reflect the requirements of motorway standards.
iii) "The Black Route": A new three-lane motorway to the south of Newport following the route protected by the 2006 TR111 Notice (see paragraph 34 above).
iv) Public transport measures.
v) Complementary measures that would be implemented alongside each of the above, which built on the M4 CEM common measures, including:a) Reclassification of the existing M4 motorway between current M4 Junctions 23 and 29 (not applicable to the Red Route option, which would leave the current M4 in place).b) An M4/M48/B4245 connection.c) Providing cycle-friendly infrastructure.d) Providing walking-friendly infrastructure.
The Red, Purple and Black Routes were common in their eastern part, being routed south of the SAR. Each crossed the Gwent Levels SSSIs.
i) The Red Route: The Report recommended that the Red Route should not be taken forward for further appraisal. In the summary, it said (paragraph 13.1.1):
"The dual 2-lane all-purpose road on the Red Route alignment does not perform as strongly as the motorway options, scoring less well than the motorway options against 13 out of the 15 [TPOs].
The Red Route option has significantly reduced capacity compared with the two motorway scenarios and attracts less traffic. By 2035, the Red Route would be expected to be operating at or near capacity and, as such, would attract up to 20% less traffic than both motorway options.
Provided that funding can be made available to deliver the new road as a single project, then a motorway solution will offer greater value for money and better meet the objectives for the project."
ii) The Purple Route: The Black Route was preferred to the Purple Route because, although both performed similarly against the TPOs, the Black Route was expected to produce higher economic benefits; its route was already protected, and so there was less deliverability risk; and the Purple Route went through a landfill site which also had attendant risks.
iii) Public transport: The appraisal showed that public transport improvements would contribute to other transport objectives, but they would likely have only a minimal impact in terms of reducing traffic on the M4 and thus relieving the traffic problems associated with that. It recommended that public transport initiatives be taken up separately by other delivery teams within the Welsh Government.
iv) Common and Complementary Measures: It recommended that these should be considered further as part of Stage 2 appraisal.
"The new motorway would cross approximately 8.5km of [SSSIs] resulting in a loss of 60ha (less than 1.5%) of the total SSSI. The principal ecological interest of the Gwent Levels SSSI lies in the reen drainage system [i.e. the system of drainage channels]."
"We want your views on our draft Plan which aims to address transport related problems on the M4 around Newport."
"draft Plan: This is the Welsh Government's preferred strategy to solve transport related problems affecting the M4 Corridor around Newport in South Wales. If implemented, the draft Plan would lead to a new motorway (Black Route) being built to the south of Newport, alongside some complementary highway management, walking and cycling initiatives. Assessments of the draft Plan compare it to reasonable alternatives as well as the Do Minimum scenario."
"Reasonable alternatives: These are reasonable alternatives to the draft Plan, being other options that the Welsh Government considers could solve transport related problems affecting the M4 Corridor around Newport in South Wales. If implemented, the reasonable alternatives would lead to either a new dual carriageway (Red Route) being built to the south of Newport, or a motorway solution along a similar alignment (Purple Route) alongside some complementary highway management, walking and cycling initiatives."
"The aims of the Welsh Government for the M4 Corridor around Newport are to:
1. Make it easier and safer for people to access their homes, workplaces and services by walking, cycling, public transport and road.
2. Deliver a more efficient and sustainable transport network supporting and encouraging long-term prosperity in the region, across Wales, and enabling access to international markets.
3. To produce positive effects overall on people and the environment, making a positive contribution to the overreaching Welsh Government goals to reduce greenhouse gas emissions and to making Wales more resilient to the effects of climate change.
The draft Plan aims to help to achieve or facilitate these aims as part of a wider transport strategy for South East Wales, as outlined within the Prioritised National Transport Plan."
"If the draft Plan (or any reasonable alternative to the draft Plan) is successful, its success will be measured by how well it achieves the following goals:
1. Safer, easier and more reliable travel east-west in South Wales.
2. Improved transport connections within Wales and to England, the Republic of Ireland and the rest of Europe on all modes on the international transport network.
3. More effective and integrated use of alternatives to the M4, including other parts of the transport network and other modes of transport for local and strategic journeys around Newport.
4. Best possible use of the existing M4, local road network and other transport networks.
5. More reliable journey times along the M4 Corridor.
6. Increased level of choice for all people making journeys within the transport Corridor by all modes between Magor and Castleton, commensurate with demand for alternatives.
7. Improved safety on the M4 Corridor between Magor and Castleton.
8. Improved air quality in areas next to the M4 around Newport.
9. Reduced disturbance to people from high noise levels, from all transport modes and traffic within the M4 Corridor.
10. Reduced greenhouse gas emissions per vehicle and/or person kilometre.
11. Improved travel experience into South Wales along the M4 Corridor.
12. An M4 attractive for strategic journeys that discourages local traffic use.
13. Improved traffic management in and around Newport on the M4 Corridor.
14. Easier access to local key services and residential and commercial centres.
15. A cultural shift in travel behaviour towards more sustainable choices."
The emboldened TPOs were most selected as priorities in the 2012 M4 CEM Consultation exercise (see paragraphs 40-44 above).
"Any scheme would be required to integrate necessary measures to avoid, reduce and offset in addition to delivering enhancements. The net benefit for biodiversity is considered to be positive in the long-term. However, considering the importance of the sites and features that may be affected the significance of effect has been determined as minor negative to account for any short term to medium term effects."
The high level mitigation measures so far as biodiversity is concerned are set out in section 8.
"The 'Blue Route'
• It would provide some local accessibility benefits and a degree of increased network resilience, particularly at times of accidents and delays on the M4.
• It would not address the problems (i.e. the need for the scheme) or achieve the objectives for the M4 around Newport, whilst it performs poorly compared to the draft Plan (Black Route) appraisal.
• The cost of a Blue Route that aims to be attractive to motorway users is likely to cost more than £600m, whilst an optimal solution would cost more than £800m, excluding any allowance for land and compensation.
• Legal agreements between the Welsh Government and Tata Steel and St Modwen require access points to their land and operational areas. Therefore to upgrade the SAR to 'expressway' or motorway standard would require a completely new scheme to be developed that would involve land and property acquisition to provide the necessary motorway standard and the necessary service roads and junctions to serve existing and planned residential and employment land developments.
• Forecasts of future traffic volumes show even with the optimal Blue Route in place, operational problems would continue to be experienced around Newport.
• The Blue Route in combination with public transport measures would still not provide sufficient relief to the M4 Corridor around Newport.
• The risks of the Blue Route compared to the Black Route include greater economic, environmental and social impacts on communities, property and future development land allocations in the urban area of Newport, also resulting in possible job losses and potentially substantial claims for compensation.
• The Blue Route would not provide a long term solution to the identified (and acknowledged) problems associated with traffic congestion and journey time variability on the motorway around Newport.
The Blue Route, either as a stand-alone measure or in combination with public transport measures, is not considered to be a reasonable alternative to the draft Plan. The Blue Route, as considered within this document, should not be taken forward for further appraisal."
Therefore, in summary, the Blue Route did not meet the objectives; but, even if it had done so, it would be an unattractive option.
"Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during the preparation and before their adoption."
"The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
"… the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with article 4 to 9."
"Environmental report" is defined in the same article as:
"… the part of the plan or programme documentation containing the information required in article 5 and Annex 1."
"Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which 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, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I."
"(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;…".
"… a statement summarising how environmental considerations have been integrated into the plan or programme and how the environmental report prepared pursuant to article 5, [and] the opinions expressed pursuant to article 6… have been taken into account in accordance with article 8 and the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with…".
"(1) Where an environment assessment is required by any provision of Part 2, the responsible authority must prepare, or secure the preparation of, an environment report in accordance with paragraph (2) and (3) of this regulation.
(2) The report must 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.
(3) The report must include such of the information referred to in Schedule 2 as may reasonably be required…".
Schedule 2 ("Information for Environmental Reports") mirrors Annex I of the SEA Directive, paragraph 8 being in identical terms to paragraph (h) of that annex (save for the reference to the examples "such as technical deficiencies or lack of know-how", which is omitted).
"Consideration and identification of alternatives in the environmental report is one of the few issues that have given rise to problems in [Member States]. Extensive national guidelines have been developed by some [Member States] in order to provide support for the identification and selection of reasonable alternatives in individual procedures. However, the majority of [Member States] have not defined how this should be done.
Most national legislations do not provide a specific definition of 'reasonable alternatives' or a number of alternatives that must be assessed; the choice of 'reasonable alternatives' is determined by means of a case-by-case assessment and a decision. All [Member States] report that a 'do-nothing' alternative has to be included in the environment report on a mandatory basis."
i) The authority's focus will be on the substantive plan, which will seek to attain particular policy objectives. The EIA Directive ensures that any particular project is subjected to an appropriate environmental assessment. The SEA Directive ensures that potentially environmentally-preferable options that will or may attain those policy objectives are not discarded as a result of earlier strategic decisions in respect of plans of which the development forms part. It does so by imposing process obligations upon the authority prior to the adoption of a particular plan.
ii) The focus of the SEA process is therefore upon a particular plan – i.e. the authority's preferred plan – although that may have various options within it. A plan will be "preferred" because, in the judgment of the authority, it best meets the objectives it seeks to attain. In the sorts of plan falling within the scope of the SEA Directive, the objectives will be policy-based and almost certainly multi-stranded, reflecting different policies that are sought to be pursued. Those policies may well not all pull in the same direction. The choice of objectives, and the weight to be given to each, are essentially a matter for the authority subject to (a) a particular factor being afforded particular enhanced weight by statute or policy, and (b) challenge on conventional public law grounds.
iii) In addition to the preferred plan, "reasonable alternatives" have to be identified, described and evaluated in the SEA Report; because, without this, there cannot be a proper environmental evaluation of the preferred plan.
iv) "Reasonable alternatives" does not include all possible alternatives: the use of the word "reasonable" clearly and necessarily imports an evaluative judgment as to which alternatives should be included. That evaluation is a matter primarily for the decision-making authority, subject to challenge only on conventional public law grounds.
v) Article 5(1) refers to "reasonable alternatives taking into account the objectives… of the plan or programme…" (emphasis added). "Reasonableness" in this context is informed by the objectives sought to be achieved. An option which does not achieve the objectives, even if it can properly be called an "alternative" to the preferred plan, is not a "reasonable alternative". An option which will, or sensibly may, achieve the objectives is a "reasonable alternative". The SEA Directive admits to the possibility of there being no such alternatives in a particular case: if only one option is assessed as meeting the objectives, there will be no "reasonable alternatives" to it.
vi) The question of whether an option will achieve the objectives is also essentially a matter for the evaluative judgment of the authority, subject of course to challenge on conventional public law grounds. If the authority rationally determines that a particular option will not meet the objectives, that option is not a reasonable alternative and it does not have to be included in the SEA Report or process.
vii) However, as a result of the consultation which forms part of that process, new information may be forthcoming that might transform an option that was previously judged as meeting the objectives into one that is judged not to do so, and vice versa. In respect of a complex plan, after SEA consultation, it is likely that the authority will need to reassess, not only whether the preferred option is still preferred as best meeting the objectives, but whether any options that were reasonable alternatives have ceased to be such and (more importantly in practice) whether any option previously regarded as not meeting the objectives might be regarded as doing so now. That may be especially important where the process is iterative, i.e. a process whereby options are reduced in number following repeated appraisals of increased rigour. As time passes, a review of the objectives might also be necessary, which also might result in a reassessment of the "reasonable alternatives". But, once an option is discarded as not being a reasonable alternative, the authority does not have to consider it further, unless there is a material change in circumstances such as those I have described.
viii) Although the SEA Directive is focused on the preferred plan, it makes no distinction between the assessment requirements for that plan (including all options within it) and any reasonable alternatives to that plan. The potential significant effects of that plan, and any reasonable alternatives, have to be identified, described and evaluated in a comparable way.
ix) Particularly where the relevant plan sets a framework for future projects (e.g. a core planning strategy), it may be appropriate and indeed helpful to have an SEA process that is iterative. If so, the appraisal has to evaluate the extant options at each stage in a comparable way. As part of an iterative SEA process, options which may be capable of achieving the objectives may be discarded on the way; but such options cannot be discarded without being subjected to an SEA Directive-compliant assessment.
x) Although an SEA process that is iterative may be particular appropriate for some framework-setting plans and programmes, it is by no means mandatory. The authority may adopt a non-SEA process to identify those options which meet the objectives. That non-SEA process may itself be iterative.
xi) The objectives an authority sets for plans caught by the SEA Directive are likely to be particularly broad and high level, as well as multiple and varied. An assessment as to whether the objectives would be "met" by a particular option is therefore peculiarly evaluative; but an option will meet the objectives if, although it may not be (in the authority's judgment) the option that best meets the objectives overall (i.e. the preferred option), it is an option which is capable of sufficiently meeting the objectives such that that option could viably be adopted and implemented. That, again, is an evaluative judgment by the authority, which will only be challengeable on conventional public law grounds. However, whilst allowing the authority a due margin of discretion, the court will scrutinise the authority's choice of alternatives considered in the SEA process to ensure that it is not seeking to avoid its obligation to evaluate reasonable alternatives by improperly restricting the range options it has identified as such.
xii) The authority has an obligation to give outline reasons for selecting (i) its preferred option over the reasonable alternatives, and (ii) the alternatives "dealt with" in the SEA process. Alternatives "dealt with" include both (i) reasonable alternatives (which must be dealt with in the SEA process) and (ii) other alternatives (which need not, but may, be dealt with in that process). The reasons that are required are merely "outline". The authority need only give the main reasons, so that consultees and other interested parties are aware of why reasonable alternatives were chosen as such (including, in appropriate cases, why other options were not chosen as reasonable alternatives) – and, similarly, why the preferred option was chosen as such.
"35. The courts themselves have long-recognised that town and country planning involves acute, complex and interrelated social, economic and environmental implications, and that Parliament has consequently entrusted its regulation to administrative decision-makers with planning experience and expertise, namely planning authorities (whose planning officers and committees also have local knowledge), and on appeal the Secretary of State acting through inspectors. Certainly, the courts have eschewed any suggestion that they should engage with the merits of planning decision-making, leaving such decisions to the appointed decision-makers, on the basis of guidance promulgated by the Secretary of State. It is well-recognised by the courts that planning decisions quintessentially require planning judgments of fact and degree, the merits of which are a matter entirely for the appointed administrative decision-makers. The limited role of the court in these circumstances has been emphasised in a number of cases (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23 at  per Lord Nolan,  per Lord Hoffmann and  per Lord Clyde; and R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions  EWHC 74 (Admin) at  per Sullivan J as he then was)…. In Alconbury, having considered the relevant European Court authorities, Lord Hoffmann (at ) said that those cases did not require the court to substitute its decision for that of the administrative authority, and that such a requirement would not only be contrary to the jurisprudence of the European Court but 'profoundly undemocratic'.
36. Hence, according to this principle, in any challenge to such a planning decision, the courts are restricted to considering the legality of the decision-making process. The principle is well-established….
37. Of course, that does not mean that a planning determination cannot be challenged in the courts: effectively, it may be challenged on any of the conventional public law grounds …".
Those comments were of course made in relation to decision-making in the context of an application for development consent; but they equally apply – indeed, apply with greater force still – in the context of the preparation and approval of plans and programmes. That is the important starting point.
"162. The SEA [Directive] requires the environmental report to contain an outline of the reasons for selecting the alternatives dealt with. That selection is made taking into account the objectives of the plan. Alternative objectives do not have to be explained nor, for these purposes, the reasons why the objectives are thought worth achieving. It is alternative ways of meeting the objectives which are the focus of the SEA. The Government concluded that alternative strategies for motorways or a new conventional or enhanced existing rail network were not capable of meeting the plan objectives set for high speed rail. It is obviously a contestable view as to whether those objectives should be met, or can be met to a large extent by means other than a new high speed rail network. These alternative strategies could not, however, have constituted reasonable alternatives to the plan for assessment in the SEA, since they are incapable by their very nature of meeting all the objectives for a new high speed rail network. The sifting process whereby a plan is arrived at does not require public consultation at each sift. This whole process has been set out in considerable detail in the may published documents for those who wished to pursue it, but it did not all have to be in an SEA.
163. The consultation process ranged wider on alternatives than would have been necessary for a consultation limited to what the SEA [Directive] required in relation to a plan. Although these were alternatives which the Government was prepared to consider through its non-SEA consultation process, that does not make them reasonable alternatives for the purpose of SEA, when measured against the objectives of the plan…".
"90. …. As to the substance of the work to be done by a local planning authority under article 5 in identifying reasonable alternatives for environmental assessment, the necessary choices to be made are deeply enmeshed with issues of planning judgment, use of limited resources and the maintenance of a balance between the objective of putting a plan in place with reasonable speed (particularly a plan such as the Core Strategy, which has an important function to fulfil in helping to ensure that planning to meet social needs is balanced in a coherent strategic way against competing environmental interests) and the objective of gathering relevant evidence and giving careful and informed consideration to the issues to be determined. The effect of this is that the planning authority has a substantial area of discretion as to the extent of the inquiries which need to be carried out to identify the reasonable alternatives which should then be examined in greater detail.
91. These points are similarly relevant to interpretation of the SEA Directive and the standard of investigation it imposes as under ordinary domestic administrative law: see, e.g., the review of the authorities by Beatson J (as he then was) in Shadwell Estates Ltd v Breckland District Council  EWHC 12 (Admin) ["Shadwell Estates"] at -. The Directive is of a procedural nature (recital (9)) and the procedures which it requires involve consultation with authorities with relevant environmental responsibilities and the public, with a view to them being able to contribute to the assessment of alternatives (recitals (15) and (17); articles 5 and 6). The relevant aspect of the obligation in article 5 is to identify and then evaluate "reasonable alternatives" to the plan in question. Under the scheme of the Directive and Environmental Assessment Regulations it is the plan-making authority which is the primary decision-maker in relation to identifying what is to be regarded as a reasonable alternative (and see [Heard] at  per Ouseley J: part of the purpose of the process under the Directive is to test whether a preferred option should end up as preferred "after a fair and public analysis of what the authority regards as reasonable alternatives"). In respect of that decision, the authority has a wide power of evaluative assessment, with the court exercising a limited review function.
92. This interpretation is reinforced by the scope for involvement of the public and the environmental authorities in commenting on the proposed plan and to make counter-proposals to inform the final decision by the plan-making authority. The Directive contemplates that the plan-making authority's choices may be open to debate in the course of public consultation and capable of improvement or modification in the light of information and representations presented during that consultation, and accordingly recognises that the choices made by the plan-making authority in choosing a plan and in selecting alternatives for evaluation at the article 5 stage involve evaluative and discretionary judgments by that authority which may be further informed by public debate at a later stage.
93. The interpretation is also supported by the limited nature of the information which the plan making authority is obliged to provide to explain the selection of the "reasonable alternatives" which are selected for examination. It is only "an outline of the reasons" for selecting those alternatives which has to be provided (paragraph (h) of Annex I; language which is similar to that used in paragraph (a), "an outline of the contents, main objectives of the plan or programme [etc]"), directed to equipping the public to participate in debate about the plan proposed, not a fully reasoned decision of a kind which might be appropriate for a more intrusive review approach or exercise of an appellate function on the part of the court.
94. As Mr Pereira submitted, paragraph (h) of Annex I (replicated in Schedule 2 to the Environmental Assessment Regulations) is to be contrasted with the language in the text of the equivalent paragraph of the draft of the SEA Directive which was originally proposed for adoption. The corresponding paragraph in the draft Directive (paragraph (f)) referred to "any alternative ways of achieving the objectives of the plan or programme which have been considered during its preparation (such as alternative types of development or alternative locations for development) and the reasons for not adopting these alternatives". This was a more demanding standard in relation to the level of reasons which would be required to be given at the article 5 stage which the legislator chose to reject in favour of an obligation to provide only "an outline of the reasons" for selecting the alternatives to be subjected to full comparative appraisal.
96. It is open to the plan-making authority, in the course of an iterative process of examination of possible alternatives, "to reject alternatives at an early stage of the process and, provided there is no change of circumstances, to decide that it is unnecessary to revisit them"; "But this is subject to the important proviso that reasons have been given for the rejection of the alternatives, that those reasons are still valid if there has been any change in the proposals in the draft plan or any other material change of circumstances and that the consultees are able, whether by reference to the part of the earlier assessment giving the reasons or by summary of those reasons or, if necessary, by repeating them, to know from the assessment accompanying the draft plan what those reasons are": [Save Historic Newmarket] at -. It may be that a series of stages of examination leads to a preferred option for which alone a full strategic assessment is done, and in that case outline reasons for the selection of the alternatives dealt with at the various stages and for not pursuing particular alternatives to the preferred option are required to be given: [Heard] at -. As Ouseley J put it in Heard, in this sort of case "The failure to give reasons for the selection of the preferred option is in reality a failure to give reasons why no other alternatives were selected for assessment or comparable assessment at that stage" ().
97. A plan-making authority has an obligation under the SEA Directive to conduct an equal examination of alternatives which it regards as reasonable alternatives to its preferred option (interpreting the Directive in a purposive way, as indicated by the Commission in its guidance: see [Heard] at ). The court will be alert to scrutinise its choices regarding reasonable alternatives to ensure that it is not seeking to avoid that obligation by saying that there are no reasonable alternatives or by improperly limiting the range of such alternatives which is identified. However, the Directive does not require the authority to embark on an artificial exercise of selecting as putative "reasonable alternatives," for full strategic assessment alongside its preferred option, alternatives which can clearly be seen, at an earlier stage of the iterative process in the course of working up a strategic plan and for good planning reasons, as not in reality being viable candidates for adoption.
98. In my judgment, that is the position in the present case…
100. As to the Claimant's challenge to the adequacy of the reasons given… for selecting Scenario C, but not Scenarios A or B, for full strategic assessment, I consider that it fails. [The authority] was only obliged to give an "outline of the reasons for selecting the alternatives dealt with", which in my view it undoubtedly did…. In giving "outline reasons" it was entitled to focus, as it did, on the main reasons why particular alternatives (in particular, Scenarios A and B) were not considered to be viable or attractive having regard to the full planning context – and hence were not "reasonable alternatives" – without descending into great detail to set out each and every aspect of the case or of impediments to adoption of such alternatives."
"The responsible authority must be accorded a substantial discretionary area of judgment in relation to compliance with the required information in environmental reports. The court will not examine the fine detail of the contents but seek to establish whether there has been substantial compliance with the information required by Schedule 2 [i.e. Annex I of the SEA Directive, which was transposed in Northern Ireland by Schedule 2 to the Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004 (SI 1991 No 1220 (NI11)) in materially the same terms as it was in Wales and England]. It is proposed to consider whether the specified matters have been addressed rather than considering the quality of the evidence."
"It is part of the purpose of this process to test whether what may start out as preferred should still end up as preferred after a fair and public analysis of what the authority regards as reasonable alternatives" (emphasis added).
"I conclude that, for all the effort put into the preparation of the [Joint Core Strategy], consultation and its [Sustainability Assessment, which was intended to satisfy the requirements for an SEA report], the need for outline reasons for the selection of the alternatives dealt with at the various stages has not been addressed. No doubt there are some possible alternatives which could be regarded as obvious non-starters by anyone, which could not warrant even an outline reason for being disregarded. The same would be true of those which obviously could not provide what [Regional Strategy] required, or which placed development in an area beyond the scope of the plan or the legal competence of the Defendants. But that is not the case here on the evidence before me, in relation to a non-NEGT growth scenario, with or without [the Northern Distributor Road], and especially with an uncertain [Northern Distributor Road]. Without the reasons for the earlier selection decisions, it is less easy to see whether the choice of alternatives involves a major deficiency."
"75. Departmental Policy PPS12, which was in force [in England] at the time of these decisions, states of the requirement to evaluate reasonable alternatives, that 'there is no point in inventing an alternative if it is not realistic'. That and the phrase 'obvious non-starters' used by Ouseley J in [Heard] (at ) for proposals which do not warrant even an outline reason for being disregarded shows that the threshold is low.
76. Notwithstanding the low threshold, … I have concluded that, in the circumstances of this case, the District Council was not under an obligation to consider the land swap proposal as a reasonable alternative. It was thus not under an obligation to subject it to a sustainability appraisal in its environmental report."
This reflects the reasoning of the first instance judge, who also took the phrase "obvious non-starters" to be negatively definitional of "reasonable alternatives" (see Chalfont St Peter (Admin Court) at ). However:
i) For the reasons I have given above (paragraph 104), I do not consider that Ouseley J in Heard was seeking to define "reasonable alternatives". He was only commenting on the fact that there are some non-reasonable alternatives which will require reasons to explain why they have not been chosen as reasonable, and others where the reason is so obvious that it need not be spelled out by the decision-maker when he is attempting to explain his selection. As a characteristic of options that are "reasonable alternatives", for the reasons I have given, I do not consider that any alternative that is not "an obvious non-starter" (Heard at , per Ouseley J) fits the bill.
ii) The reference to "realistic" in PPS12 (and in the SEA Commission Guidance: see paragraph 103 above) is of little assistance, unless it is seen in full context. An option is not "realistic" if it is in practice not going to be pursued because the decision-maker lawfully determines that it will not sufficiently meet the objective.
iii) Mr Moffett submitted that "thresholds" in this context are not an entirely helpful concept. I see the force in that submission. However, in Chalfont St Peter (CA) Beatson LJ was considering a core strategy, i.e. a framework-setting plan. In that context, where there are very large numbers of possible alternatives and options that may fulfil the broad objectives of the strategy, it may be more apposite to say that the "viability" threshold is "low", because options that are capable of meeting the high level objectives might be many. It may be seen as "higher" if, as with the draft Plan in this case, the possible options are fewer. For the reasons I have already given, it is clear that Beatson LJ was not suggesting a test of review anything other than Wednesbury.
i) I have set out the scope of "reasonable alternatives", namely they are options which are considered by the decision-maker to be viable in the sense of being capable of meeting the objectives to which the decision-maker is working to such an extent that that option is viable.
ii) The problems with the M4 around Newport that the Welsh Government sought to address, and the Government's aims and objectives in respect of them, did not materially change over the material period.
iii) It is common ground that the SEA process in this case was not iterative. It started in September 2013, with the publication of the SEA Report for consultation. That identified the Black Route as the preferred option, and the Red Route and Purple Route as reasonable alternatives.
iv) However, prior to September 2013, the Welsh Government had conducted an extensive non-SEA exercise on options that did not involve a new stretch of motorway running south of Newport over the Gwent Levels SSSIs, namely Options A, B, C and D in the March 2013 WelTAG Appraisal. At this stage, options involving a new stretch of motorway were not viable, because (and only because) they could not be financed. That appraisal concluded that none of the options met the objectives, save for Option A which involved a major new road (but not a motorway) across the Gwent Levels SSSIs. As at March 2013, there was thus only one viable option that met the objectives, Option A.
v) The change in the Welsh Government's borrowing powers led to the removal of the impediment that had made motorway options non-viable, namely funding. The June 2013 WelTAG Appraisal included the Black Route as the preferred option together with Option A (as the only non-motorway option, renamed the Red Route) and the Purple Route (effectively the Option A route, but as a new motorway) as viable options that were considered by the Welsh Government sufficiently to meet the objectives. The SEA Report itself made the selection criteria clear: it defined the "draft Plan" as "the Welsh Government's preferred strategy to solve transport related problems affecting the M4 Corridor around Newport…"; and the "reasonable alternatives" of the Red Route and Purple Route as "reasonable alternatives to the draft Plan, being other options that the Welsh Government considers could solve transport related problems affecting the M4 Corridor around Newport…" (see paragraph 59 above: emphases added). That precisely identified the preferred option and reasonable alternatives on the correct legal basis, i.e. in terms of options which are capable of "solving transport related problems affecting the M4 Corridor around Newport" by meeting the TPOs specifically designed to do just that. In any event, looking at that report in its full context, it is abundantly clear that, throughout, the Welsh Government had in mind, and applied, the correct legal basis.
vi) Other alternatives (including those that created a high(er) quality road by improving the existing SAR or the SDR) had by June 2013 already been discarded on the basis that they were not judged to meet the objectives (again, the correct legal test). That was, certainly, a rational decision: indeed, on the basis of the March 2013 WelTAG Appraisal, it was all but inevitable, as those other options would not have resulted in any significant improvement of the M4 around Newport by the design date compared with the current position.
vii) Contrary to Mr Goodman's submission, the inclusion of those other options in the November 2012 "SEA Report" and the March 2013 WelTAG Appraisal does not suggest that, at that time, the Welsh Government considered those other options did meet the objectives. Although most options included in SEA reports are generally either preferred options or reasonable alternatives, (a) it is common ground that the November 2012 report did not form part of a valid SEA process, nor do the Welsh Ministers rely upon it as such (see paragraph 44 above); and (b) when looked at fairly and as a whole, the documents were not phrased in a way suggesting that the options put forward would meet, or were capable of meeting, the TPOs; indeed, the main purpose of the consultation was expressly to obtain informed views as to the extent to which (if at all) the options did meet the objectives.
viii) The Claimant relies upon the Blue Route as an option which ought to have been included in the 2013 SEA Report. However, (a) the Blue Route was not sufficiently worked up to be put into the report at the time the report was published; (b) it comprised a combination of two elements that had previously been investigated as discrete options and found not to meet the objectives; and (c) in any event, after that route had been considered by Arup, it was found not to meet the objectives because it failed to relieve the problems on the M4. The Welsh Government did not arguably act irrationally in considering that the Blue Route did not meet the objectives, as was concluded in the Post-Adoption SAA. No other option, not already considered, is suggested by the Claimant as one which is capable of meeting the objectives.
ix) The SEA Report (particularly when read with the WelTAG Appraisal Reports to which it cross-referred) explained why the discarded options had been discarded, i.e. they did not satisfy the TPOs: in short, they did not resolve to any significant extent the problems of the M4 around Newport that the Plan was designed to resolve.
The SEA Report was indeed based on the premise that no option that did not involve a high quality road across the Gwent Levels SSSIs was capable of achieving the TPOs. However, that premise was not irrational. The pre-SEA process had ascertained that, of the non-motorway options, only the option of a high quality dual carriageway across the Gwent Levels SSSIs was capable of achieving those objectives which, over the relevant period, did not change: by the design date, the other options did not obtain any benefit over the current position with regard to problems caused by traffic on the M4 which the objectives directly reflected. No other option capable of meeting the objectives has been suggested. The decisions of the Welsh Government in discarding options as not being capable of achieving the plan objectives were based upon WelTAG assessments and (non-SEA) consultation. It is not arguable that they fell outside the band of legitimate decision-making or are otherwise unlawful. Indeed, on the basis of the evidence before them the decisions were not only rational but all but inevitable.
The Welsh Government did not simply "treat" harm to the SSSIs as inherently unavoidable: the conclusion of the process that they adopted was that options that did not include a high quality highway across the Gwent Levels SSSIs were not capable of achieving the objectives.
The Welsh Government did not misunderstand the scope of "reasonable alternatives" for the purposes of article 5(1). It correctly understood that a reasonable alternative was one which was capable of meeting the TPOs. It was only such options that had to be subjected to the SEA process. That does not, as Mr Goodman suggests, undermine the purposes of the SEA Directive of integrating environmental considerations into strategic planning decision-making, because any options capable of achieving the relevant objectives are subject to SEA assessment on a basis comparable to that upon which the preferred option is evaluated. The SEA does not require such an assessment of options that will not achieve those objectives, because in practice such options are never going to be pursued.
On the facts, this was not the case. All options capable of achieving the TPOs were included in the SEA Report.
Sub-ground (vi): The Defendant's after the fact rejection of the Blue Route as amounting to a reasonable alternative was irrational, unlawful and failed to accord with the requirements of the SEA Directive
These two sub-grounds can conveniently be dealt with together. Again, on the facts of the case, the propositions cannot be made out. The environmental harm that would inevitably result from a high quality highway running across the Gwent Levels SSSIs was not "assumed": the Welsh Government discarded options that did not involve such a highway, because they rationally considered none would be capable of achieving the TPOs. In the light of the previous assessment that neither of the two main elements of the Blue Route (improvement to the SAR and the SDR, respectively) would be anywhere near capable of achieving the TPOs, it was not irrational not to include a combination of those elements as a reasonable alternative in the SEA Report. In any event, assessment of the Blue Route after the publication of the SEA Report confirmed that the Blue Route was not capable of meeting the objectives.
See the comments in relation to sub-ground (i) (paragraph 117 above).
Again, on the facts of the case, this proposition cannot be maintained. The Welsh Government had an obligation to give outline reasons for its selection of the preferred option and reasonable alternatives. It more than adequately explained why it considered other options would not achieve the TPOs – in short, because none would improve the position with regard to the M4 around Newport which was in essence what the Welsh Government sought to do.
It is the Claimant's case that the Welsh Government has taken a pessimistic and incorrect view of likely traffic flows on the M4 taking account of the effects of (e.g.) the potential impact of public transport measures such as the proposed electrification of the main South Wales railway line and local lines (the South Wales Metro). It relies on the July 2014 National Assembly for Wales Environment and Sustainability Committee's Report on its inquiry into the Government's proposals, which noted (i) academic evidence that suggested the methodology adopted by the Government "consistently predicted significant traffic growth while actual traffic data shows the trend to be broadly flat", and that insufficient consideration had been given to the potential impact of public transport proposals; and (ii) other academic evidence that, if the predictions relied upon by the Government are correct, then the proposal will not be sufficient to improve traffic conditions (paragraphs 18-25 of the report). However, (i) the Welsh Government concluded on the basis of proper evidence that the effect of public transport measures on the usage of the M4 (as opposed to other potential benefits of such initiatives) would be negligible (see paragraph 48 above); and (ii) the Environment and Sustainability Committee are noted as merely having heard evidence that "suggested" that there were "weaknesses" in the methodology, and it made other comments which suggest that it considered the Government may have misinterpreted data (which the Government denies), which cannot possibly render the environment report invalid. The Welsh Government, as advised by Arup, was patently entitled to act on the basis of the evidence it had and the widely-accepted methodology employed.
"(1) An authority to which this section applies…..shall have the duty set out in exercising its function so far as their exercise is likely to effect the flora, fauna or geological or physiographical features by reason of which [an SSSI] is of special interest.
(2) The duty is to take reasonable steps, consistent with a proper exercise of the authority's functions, to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which the site is of special scientific interest."
The Welsh Ministers are an authority to which the section applies; and, therefore, the Minister was subject to the duty imposed by section 28G when deciding to adopt the Plan.
"Section 66 does not permit a local planning authority to treat the desirability of preserving the setting of a listed building as a mere material consideration to which it can simply attach what weight it sees fit in its judgment. The statutory language goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable. So if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm. The language of presumption against permission or strong countervailing reasons for its grant is appropriate. It is the obvious consequence of the statutory language, rather than an illegitimate substitute for it."
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer
place the disabled person concerned at a substantial disadvantage in comparison with persons not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."
As Baroness Hale explained in Archibald v Fife Council  UKHL 32 (at ), that entailed a measure of positive discrimination, in the sense that it imposed a positive duty on the employer to take steps that are in all the circumstances reasonable to help disabled people which they are not required to take for others.
i) In the early 1990s, the Countryside Council for Wales expressed concerns about potential environmental impact of the proposed M4 relief motorway, routed as it was south of Newport and across the Gwent Levels SSSIs. As a result, a further review was carried out, which noted the detrimental environmental effect that any northern route motorway would have, and confirming the southern route was preferred (see paragraph 29 above).
ii) For the purpose of the first TR111 notice in 1995, the route was identified to "minimise the potential impacts" on the Gwent Levels SSSIs (see paragraph 31).
iii) The route was altered – moving it north – as a result of a review in 2004-6, to reduce the impact on and severance of the Gwent Levels SSSIs. The review specifically and expressly took into account the strengthening of the protection for SSSIs by the 2000 Act and particularly the Welsh Government's duty under section 28G of the 1981 Act brought into being by the 2000 Act. In announcing the consequent revisions to the preferred route in the 1997 TR111 Notice, the Minster emphasised that the changes "offer a clear benefit to the environment by taking the route northwards and where possible onto land previously of industrial use thereby reducing its impact on the Gwent Levels including the [SSSIs]" (see paragraph 34 above).
iv) The March 2013 WelTAG Appraisal specifically took into account, for each option considered, the comments received from the consultation on the November 2012 Environmental Report (paragraph 45 above).
v) The June 2013 WelTAG Appraisal did not deal with environmental matters in any detail, pending the SEA Report. However, it said that all three highway options "result in moderate to large impacts on the environment…". It also indicated that the main ecological interest of the SSSIs was the reen system (see paragraph 56 above).
vi) The 2013 SEA Report expressly took account of the 2000 Act as a relevant statute, and, in detail, assessed the significant effects of the draft Plan and the chosen reasonable alternatives, determining the significance of effect as "minor negative" (paragraph 68 above).
vii) The SEA Post-Adoption Statement set out the potential environmental effects and associated mitigation, in detail, in a similar manner to the SEA report (see paragraph 71 above).
i) Not to proceed with any option that involved a highway across the Gwent Levels SSSIs. However, as I have explained, none of the options that did not involve such a highway came anything like achieving the objectives, namely the TPOs or (in short) the relief of the M4 motorway around Newport. The do-minimum scenario was also discounted on, amongst other things, the environmental unacceptability of the status quo.
ii) To mitigate the harm necessarily caused by such a highway. Looking at the history, briefly related above, it is simply not maintainable that the Minister was not sensitive to that harm, and to the importance of mitigating and minimising it. Indeed, as Mr Moffett submitted, looked at fairly, the whole process that resulted in the decision challenged was focused on the potential harm to the Gwent Levels SSSIs of a new highway crossing them, and the mitigation of that harm. The Minister clearly paid the SSSIs and the desirability of preserving and protecting them the regard required of her. She did not arguably err in this regard.