City & District Council of St Albans and Another v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 20 May 2009 |
| Neutral Citation | [2009] EWHC 1280 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5844/2008, CO/5911/2008 |
| Date | 20 May 2009 |
[2009] EWHC 1280 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/5844/2008, CO/5911/2008
Mr D Elvin QC and Mr Forsdick ( Mr Forsdick for judgment)(instructed by the Legal Department of Hertfordshire District Council) appeared on behalf of the Claimant, Hertfordshire District Council
Mr M Reed (instructed by the Legal Department of the City and District Council of St Albans) appeared on behalf of the Claimant, St Albans
Mr J Swift, Mr J Litton and Mr D Blundell ( instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
The issue
In simplified terms, Articles 3(1) and 4 of Directive 2001/42/EC of 27 June 2001 (“the Directive”) require an environmental assessment to be carried out during the preparation of a framework plan for development and before it is adopted. Hertfordshire County Council and the City and District Council of St Albans (“the claimant”) contend that no proper assessment was prepared before the Secretary of State for Communities and Local Government (“the Secretary of State”) adopted a revision of “the East of England plan —The revision to the regional spatial strategy for the East of England” (“the plan”) in May 2008 and that, in consequence, certain of its policies affecting Hemel Hempstead, Welwyn Garden City and Hatfield (“the three towns”) and Harlow should be quashed.
The Law
The claimant's challenge is brought under section 113(2) of the Planning and Compulsory Purchase Act 2004, which applies to “a revision of the spatial strategy”. It permits a challenge on two grounds, of which only the first is in issue: “the document is not within the appropriate power”. The relevant power is Part 1 of the 2004 Act and secondary legislation affecting it. The challenge, therefore, raises a hard-edged question of law.
The 2004 Act introduced a new hierarchy of development plans. The framework for development control was set by regional planning guidance issued by the Secretary of State, a Structure Plan and a local development plan. Now the framework is contained in a regional spatial strategy and a local development framework. The regional spatial strategy must set out in the Secretary of State's policies in relation to the development and use of land within one of the regions of England: section 1(2).
With effect from 28 September 2004 the regional spatial strategy for a region was to be so much of the regional planning guidance relating to that region as the Secretary of State prescribed: section 1(5). Regional planning boards comprising representatives of local authorities within the region can be recognised by the Secretary of State: section 2(1). Their functions include the preparation of a draft revision of the regional spatial strategy and submitting it to the Secretary of State: section 5(1) and (8)(b). The Secretary of State can arrange for an examination in public to be held into the draft: section 7(3). The examiner must report to the Secretary of State: section 8(5). If she proposes to make any changes to the draft considered by the examiner, she must publish any changes she proposes to make with reasons: section 9(3). There is provision at each stage for the making of representations by interested parties.
Once adopted by the Secretary of State the regional spatial strategy sets the framework for the local plan. Internally, any policy in a regional spatial strategy prevails over any other statement or information within it: section 1(4). In preparing a local development document the Local Planning Authority must have regard to the regional spatial strategy for the region in which it is situated (if outside Greater London): section 19(2)(b). Such a document must be in general conformity with the regional spatial strategy: section 24(1)(a). The development plan for an area outside Greater London is the regional spatial strategy for the region and adopted or approved development plan documents for the area: section 38(3). If regard is to be had to the development plan for the purpose of any planning determination, it must be made in accordance with the plan unless material considerations indicate otherwise: section 38(6).
The requirement for environmental assessments to be carried out before a regional spatial strategy is adopted is contained in the Directive and in the Environmental Assessment of Plans and Programmes Regulations 2004 SI 2004 No 1633 (“the Regulations”) which give effect to it. The purpose of the Directive is set out in recital (4).
“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 of the Member States because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before adoption.”
The means by which it is achieved are set out in recitals (14) and (17):
“(14) Where an assessment is required by this Directive, an environmental report should be prepared containing relevant information as set out in this Directive, identifying, describing and evaluating the likely significant environmental effects of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.
…
(17 The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure.”
Article 1 restates the objective of the Directive:
“… 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.”
Article 2(a) defines “plans and programmes” as including plans and any modification to them which are subject to preparation and/adoption by an authority at national or regional level and which are required by legislative provision. Article 2(b) and (c) define “environmental assessment” and “environmental report”:
“(b) 'environmental assessment' shall mean 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 Articles 4 to 9;
(c) 'the environmental report' shall mean the part of the plan or programme documentation containing the information required in Article 5 and Annex I;”
Article 3.1 and .2 defines the scope of the obligation: an environmental assessment must be carried out for plans prepared for town and country planning or land use which “set the framework for future development” and are listed in the Annexes to Directive 85/337/EC. Urban development projects are included in Annex II to that Directive. Article 4.1 requires that the environmental assessment shall be carried out “during the preparation of a plan … and before its adoption”. Where plans form part of a hierarchy, duplication may be avoided by taking into account the fact that the assessment will be carried out at different levels of the hierarchy: Article 4.3. Article 5 stipulates what must be contained in an environmental report:
“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 1.
2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.”
Annex I specifies the information to be contained in the report. It includes:
“(f) the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archeological heritage, landscape and interrelationship between the above factors;
…
(h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken…”
The regulations, which transpose the Directive into English law, do so without materially altering its effect. Subject to transitional provisions and exceptions, which are irrelevant for present purposes, the...
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