In a judgment handed down on 6th February 2014, the High Court has dismissed a legal challenge brought by NANT (a local residents' action group) against Suffolk Coastal District Council's Core Strategy, which was adopted in July 2013 following many years of development and consultation. Suffolk Coastal District Council was represented by Paul Shadarevian and Emma Dring.
NANT had asked the High Court to quash policies within the Core Strategy which provided for a strategic housing allocation of 2,000 new homes to the east of Ipswich, adjacent to a major employment site owned by BT plc.
The Council had identified 5 possible locations for a strategic housing allocation of approximately 1,000 homes in 2007. It undertook strategic environmental assessment (SEA) of the 5 options, and selected the site next to BT's land. Of the 5 options, that site was closest to the Deben Estuary, a RAMSAR site and Special Protection Area protected under the Habitats Directive.
In 2009 the Council proposed an increase in the size of the allocation to 2,000 houses, for sustainability reasons. No alternative options were subjected to SEA at that stage. However, an assessment of alternative options was carried out at later and published at the pre-submission stage.
An appropriate assessment under the Habitats Directive was also carried out at various stages during the development of the Core Strategy, which detailed the mitigation which would be necessary to enable the Council to conclude that there would be no adverse effect on the Deben Estuary, and thus lawfully to adopt the Core Strategy.
Following the public examination, modifications were approved to the wording of the contentious policies to ensure that the mitigation would be provided and to make clear that if a later assessment showed that the strategic allocation could not be delivered without adverse impacts on sites protected by the Habitats Directive, "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". The Inspector found the Core Strategy to be sound.
NANT argued that the Council had breached the SEA Directive and regulations because it had not carried out an adequate SEA, and so had not appreciated the significance of the Deben Estuary's protected status when selecting the site next to BT's land. It was also alleged that the failure to assess alternative options when the allocation was increased to 2,000 houses was a breach of the SEA Directive. It was said that the Council had breached the Habitats Directive and regulations because an appropriate assessment was not carried out at the earliest stage in the plan preparation process; and because the proposed mitigation was not sufficiently certain. Finally, it was argued that the 'safeguarding' wording in the adopted policy made the strategic allocation undeliverable.
In dismissing the claim, Mrs Justice Patterson held:
- Although there had been "a flaw in the early decision making process" because there ought to have been SEA at earlier stages in the plan process than had in fact occurred; the Council was aware of the nature conservation significance by the time it selected the preferred option for the strategic housing allocation and had made "a well and properly informed decision" (paras 123-125).
- The increase in the size of the strategic allocation (from 1,000 to 2,000 houses) was "a material change in circumstances" and it would have been better to publish SEA of the alternative options in 2009. However, an assessment of the alternatives had subsequently been carried out and published, such that "the individual decisions complained about were corrected ... before the plan was adopted" and the Council "acted rationally at the critical stage of the Development Plan" (paras 128-129).
- As to the Habitats Directive, "whilst it is clearly good practice to carry out an AA at an early stage there is no absolute requirement to do so ... a failure to conduct an AA at the beginning of the process cannot vitiate the ultimate decision provided the assessment is carried out before the plan takes effect" (para 142).
- The Inspector had been satisfied that the proposed mitigation for the strategic housing allocation could be incorporated within a sound plan and therefore that the mitigation was practical and sufficiently certain. There was no flaw in the Inspector's conclusion as to the certainty of mitigation (paras 152-156).
- As to deliverability, the use of 'safeguarding' wording had been accepted as lawful in Feeney v Oxford City Council  EWHC 2699 and was lawful here for the reasons expressed by the Court of Appeal in that case. The Council had committed to an early review of the housing numbers in the Core Strategy, and that amounted to a plan B in the event that the full strategic housing allocation could not be proceed (paras 164-165).
This important judgment confirms the principle set out in Cogent Land LLP v Rochford District Council and Bellway Homes Ltd  EWHC 2542, that defects during the SEA/development plan process should in principle be capable of being cured, and the correct or best policy should be capable of being justified, even if that justification comes at a later stage in the process. This will be of some comfort to local authorities engaged in plan preparation, which is a lengthy and often difficult process which takes place against a constantly evolving framework of legal requirements.