Ashdown Forest Economic Development LLP v Wealden District Council and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice McFarlane,Lord Justice Christopher Clarke
Judgment Date09 July 2015
Neutral Citation[2015] EWCA Civ 681
Date09 July 2015
Docket NumberCase No: C1/2014/1148

[2015] EWCA Civ 681

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Mr Justice Sales

[2014] EWHC 406 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice McFarlane

and

Lord Justice Christopher Clarke

Case No: C1/2014/1148

Between:
Ashdown Forest Economic Development LLP
Appellant
and
(1) Wealden District Council
(2) South Downs National Park Authority
Respondents

David Elvin QC and Charles Banner (instructed by King Wood Mallesons LLP) for the Appellant

Douglas Edwards QC and David Graham (instructed by Wealden and Rother Shared Legal Service) for the Respondents

Hearing date: 11 June 2015

Lord Justice Richards
1

This appeal concerns a single policy in the Wealden District (incorporating part of the South Downs National Park) Core Strategy Local Plan ("the Core Strategy"), adopted on 19 February 2013. The Core Strategy forms part of the statutory development plan for the administrative areas of Wealden District Council ("the Council") and the South Downs National Park Authority. The Council had the main role in preparing it for adoption, and for convenience I will refer to the Council as the decision-maker.

2

The appellant is a corporate vehicle controlled by four landed estates whose property interests are affected by the Core Strategy. It brought a claim under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") seeking to quash the Core Strategy in whole or in part. The claim was dismissed by Sales J (as he then was) on all grounds. Permission to appeal was subsequently granted by Lewison LJ, limited to a single ground.

3

The ground on which permission was granted concerns a policy in the Core Strategy relating to the protection of Ashdown Forest, which is a special protection area ("SPA") designated under Directive 2009/147/EC on the conservation of wild birds, and a special area of conservation ("SAC") designated under Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive"). The policy is numbered WCS12 and includes the following material passage:

" WCS12 Biodiversity

In order to avoid the adverse effect on the integrity of the Ashdown Forest Special Protection Area and Special Area of Conservation it is the Council's intention to reduce the recreational impact of visitors resulting from new housing development within 7 kilometres of Ashdown Forest by creating an exclusion zone of 400 metres for net increases in dwellings in the Delivery and Site Allocations Development Plan Document and requiring provision of Suitable Alternative Natural Green Space and contributions to on-site visitor management measures as part of policies required as a result of development at SD1, SD8, SD9 and SD10 in the Strategic Sites Development Plan Document. Mitigation measures within 7 kilometres of Ashdown Forest for windfall development, including provision of Suitable Alternative Natural Green Space and on-site visitor management measures will be contained within the Delivery and Sites Allocations Development Plan Document and will be associated with the implementation of the integrated green network strategy. In the meantime the Council will work with appropriate partners to identify Suitable Alternative Natural Green Space and on-site management measures at Ashdown Forest so that otherwise acceptable development is not prevented from coming forward by the absence of acceptable mitigation."

4

The appellant challenges the policy in so far as it relates to new housing development within 7 km of Ashdown Forest, contending that it was adopted in breach of the Council's duty under Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment ("the SEA Directive"), as implemented by The Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA Regulations"), to assess reasonable alternatives to a 7 km zone. The 400 metre exclusion zone is not challenged.

The legal framework

The plan-making process

5

The position of a core strategy within the statutory development plan and the statutory process for its adoption are summarised at paragraphs 10–18 of the judgment of Sales J. It is unnecessary to repeat any of that here. I should, however, note that the Council was under a duty to carry out a sustainability appraisal ("SA") in respect of each successive draft of the Core Strategy and that the environmental assessments referred to below could lawfully be incorporated by reference within the SA.

The SEA Regulations

6

It is common ground that in preparing the Core Strategy the Council was required to carry out an environmental assessment in accordance with the SEA Regulations. Regulation 12 provides:

" Preparation of environmental report

12(1) Where an environmental assessment is required by any provision of Part 2 of these Regulations, the responsible authority shall prepare, or secure the preparation of, an environmental report in accordance with paragraphs (2) and (3) of this regulation.

(2) The report shall 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 shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required …."

The information referred to in Schedule 2 includes, in paragraph 8:

"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."

7

Regulation 13 provides that every draft plan or programme for which an environmental report has been prepared in accordance with regulation 12, and its accompanying environmental report, shall be made available for the purposes of consultation in accordance with provisions laid down by the regulation.

8

Regulation 16 provides that as soon as reasonably practicable after the adoption of a plan or programme, the responsible authority shall take steps which include the provision of information as to "how environmental considerations have been integrated into the plan or programme" and "the reasons for choosing the plan or programme as adopted, in the light of the other reasonable alternatives dealt with".

9

The requirement to assess reasonable alternatives applies most obviously to matters such as the type of development proposed or the selection of areas for development, as in City and District Council of St Albans v Secretary of State for Communities and Local Government [2010] JPL 10; Save Historic Newmarket Ltd and Others v Forest Heath District Council [2011] JPL 123 21; Heard v Broadland District Council [2012] EWHC 344 (Admin), [2012] Env LR 23; and R (Buckinghamshire County Council and Others) v Secretary of State for Transport [2013] EWHC 481 (Admin). It can relate to the plan or programme as a whole or to specific policies within the plan or programme. We were not taken to any case comparable to the present, where the requirement to assess reasonable alternatives is said to apply to a policy directed specifically towards ensuring that the environment is not harmed by development provided for by the plan; but there appeared to be no dispute between the parties that the requirement is capable in principle of applying to such a policy (or, therefore, to the 7 km zone in policy WCS12).

10

In Heard v Broadland District Council (cited above), at paragraphs 66–71, Ouseley J held that where a preferred option – in that case, a preferred option for the location of development – emerges in the course of the plan-making process, the reasons for selecting it must be given. He held that the failure to give reasons for the selection of the preferred option was in reality a failure to give reasons why no other alternative sites were selected for assessment or comparable assessment at the relevant stage, and that this represented a breach of the SEA Directive on its express terms. He also held that although there is a case for the examination of the preferred option in greater detail, the aim of the Directive is more obviously met by, and it is best interpreted as requiring, an equal examination of the alternatives which it is reasonable to select for examination alongside whatever may be the preferred option.

The Habitats Regulations

11

Article 6(3) of the Habitats Directive requires inter alia that any plan or project likely to have a significant effect on a designated site must be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. The relevant implementing regulations are The Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations"), which make provision in regulation 61 for the assessment of plans or projects generally, and in regulation 102 for the assessment of land use plans. Regulations 61 and 102 are in materially the same terms but I will quote the latter since it is the more obvious provision to apply to a core strategy:

" 102. Assessment of implications for European sites and European offshore marine sites

(1) Where a land use plan –

(a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b) is not directly connected with or necessary to the management...

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