Cornerstone Barristers In First Local Plan Challenge To Reach The Court Of Appeal

01 Jan 2018

Planning and Environment

The Court of Appeal has today upheld Suffolk Coastal DC’s adopted core strategy, in the first local plan challenge to reach the Court of Appeal. SCDC’s core strategy had been challenged on grounds relating to Strategic Environmental Assessment (SEA) and ‘Appropriate Assessment’ under the Habitats Directive/Regulations (AA). The Court of Appeal’s judgment will be welcomed by local authorities, because it confirms that errors in environmental assessments are capable of being cured by further consultations prior to the adoption of the plan. In dismissing the appeal in No Adastral New Town v Suffolk Coastal District Council [2015] EWCA Civ 88, the Court also upheld the earlier judgment of Patterson J ([2014] EWHC 223 (Admin) – read our earlier report here).

The Plan
The development of SCDC’s core strategy began in 2006, but the plan was not formally adopted until July 2013. The most controversial policy related to a planned allocation of 2,000 houses on ‘Area 4’, a site near a large BT employment base near Martlesham, to the east of Ipswich. Area 4 is also located just over 1km away from the Deben Estuary, which is a Special Protection Area benefitting from the protection of the Habitats Directive as well as carrying numerous other designations.

Area 4 was identified as the preferred location for 1,050 houses in 2008. Although there had been no SEA or AA up to that point, the 2008 consultation was accompanied by a full SEA and an AA screening report identifying the potential effects on the Deben Estuary SPA. In 2009 the Council proposed to increase the size of the allocation to 2,000 for reasons relating to infrastructure. The 2009 consultation did not assess alternative locations for the extra houses, but in 2011 (prior to submitting the plan for examination) further consultations were carried out which did include such an assessment. The AA concluded that there would be no adverse impact on the SPA, provided specified mitigation was put in place. Following examination the policy wording was modified. ‘Safeguarding words’ were added to ensure that, if subsequent project-level AAs revealed possible adverse effects, development would only be permitted to the level at which the effects could be ruled out.

The Legal Challenge
It was argued that the errors in the SEA process (namely the lack of SEA prior to 2008 and the failure to assess alternatives to 2,000 houses in 2009) were not capable of being cured as a matter of law and had not been cured as a matter of fact. As for the AA, it was argued that the initial screening and scoping exercise had not been done at a sufficiently early stage (before the preferred option had been selected) and that it was unlawful for the plan to leave over elements of mitigation to later stages of the planning process, when the evidence was available at the core strategy stage.

SCDC accepted (in light of the judgment of Patterson J) that there had been errors in the SEA process, but argued that these errors had been cured prior to the adoption of the plan. It was argued that the Habitats Regulations grounds were not supported the wording of the Directive or any cases.

The Judgment
The key parts of the judgment are as follows:

  1. The Court of Appeal confirmed that the High Court’s conclusions on issues of principle in Cogent Land LLP v Rochford DC [2012] EWHC 2542 (Admin) were correct. Defects at earlier stages of the proposal can in principle be cured at a later stage. In Cogent there had been a failure to give reasons for rejecting alternative options, this was cured by a later consultation while the independent examination was suspended: judgment §53.
  2. The Court noted that a similar view was recently expressed Ashdown Forest Economic Development LLP v SSCLG [2014] EWHC 406 (Admin), where Sales J said that the correct focus for analysis under the SEA Directive was the Core Strategy documents submitted for independent examination by the inspector, and the examination procedure appeared to be a consultation process capable of fulfilling the consultation requirement under the Directive: judgment §53.
  3. There is no relevant distinction, for these purposes, between a failure to give reasons for rejecting alternatives (as in Cogent) and a failure to assess those alternatives at the correct stage (as in the present case). Both errors are defects of process, and the reasoning in Cogent is applicable in both scenarios: judgment §54.
  4. The Court found that, as a matter of fact, the SEA and consultations carried out by SCDC prior to submission of the plan for examination had cured the earlier defects in process. The 2011 documents did not involve an unacceptable paper chase, and there was no evidence to suggest that the decision to submit the draft core strategy for examination “was anything other than a genuine decision reached after due consideration of the November 2011 SA and the responses to the consultation on it”: judgment § 56-59.
  5. Neither the Habitats Directive itself, nor any of the cases relied upon by the Appellants (including Sweetman v An Bord Pleanala Case C-258/11), contain even an obligation to carry out a screening assessment, let alone any rule as to when it should be carried out. “If it is not obvious whether a plan or project is likely to have a significant effect on an SPA, it may be necessary in practice to carry out a screening assessment in order to ensure that the substantive requirements of the Directive are ultimately met. It may be prudent, and likely to reduce delay, to carry one out an early stage of the decision-making process. There is, however, no obligation to do so”: judgment §68.
  6. The Court confirmed that the important question in terms of mitigation was not whether it was considered at the core strategy stage in as much detail as the available information permitted, but whether there was sufficient information at that stage to enable the Council to be duly satisfied that it could be achieved in practice (given that the mitigation proposals were integral to the AA’s conclusion that 2,000 dwellings on Area 4 would have no adverse effect on the integrity of the SPA). The ‘safeguarding words’ added to the plan following independent did not demonstrate any uncertainty as to the sufficiency or achievability of the mitigation measures proposed, but were a sensible precautionary measure in a plan setting the framework for development until 2027. This approach was in accordance with the Habitats Directive, not in breach of it: judgment §72-74.

This judgment will be welcomed by local authorities who are engaged in preparing development plan documents. The fact that the Court of Appeal has endorsed the principle of curing errors in the environmental assessment process is particularly significant, and echoes the approach taken by the courts to Environmental Impact Assessment challenges. Local authorities would be well advised to review their environmental assessments prior to submitting development plan documents for examination, to identify any possible areas of weakness. The way in which alternative options are dealt with has been repeatedly raised in legal challenges. The opportunity to carry out further SEA/AA work and further consultations to strengthen the environmental assessments, even at a relatively late stage, should not be missed. It will of course be essential for consultation responses to be considered with a genuinely open mind. Although additional consultations can cause undesirable delays in plan preparation, the delay, cost and uncertainty of a legal challenge (where there is no permission stage to filter out unmeritorious claims) is a far worse fate.

Paul Shadarevian and Emma Dring acted for Suffolk Coastal District Council.