Friends of the Earth Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] EWHC 518 (Admin) |
| Docket Number | Case No: CO/3380/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2019 |
[2019] EWHC 518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/3380/2018
Richard Kimblin QC and Nina Pindham (instructed by Will Rundle, Head of Legal, Friends of the Earth) for the Claimant
Rupert Warren QC and Heather Sargent (instructed by Government Legal Department) for the Defendant
Hearing dates: 18 th–19 th December 2018
Approved Judgment
The facts
In March 2012 the Defendant published the first edition of the National Planning Policy Framework. By then planning policy issued by central government had been a feature of the planning system, and a material consideration in plan making and decision taking, for very many years. Initially published in the form of circulars, over the course of time National Planning Policy had been collated thematically into sequences of Planning Policy Guidance documents, and thereafter Planning Policy Statements on various topics ranging from general principles, through national planning policy concepts such as the Green Belt, to the consideration of issues concerning the historic built environment and nature conservation amongst others. One of the aims of the publication of the National Planning Policy Framework was identified in the Ministerial Foreword as follows:
“In part, people have been put off from getting involved because planning policy itself has become so elaborate and forbidding – the preserve of specialists rather than people in communities.
This National Planning Policy Framework changes that. By replacing over one thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning.”
For reasons which it is unnecessary to go into for the purposes of this judgment the Defendant determined over the course of time that it would be necessary for the National Planning Policy Framework to be reviewed and revised. A consultation draft of a revised National Planning Policy Framework was put out for consultation and on 24 th July 2018 the revised version of the National Planning Policy Framework (hereafter “the Framework”) was published on 24 th July 2018.
In these proceedings, which proceeded as a “rolled-up” hearing pursuant to an order dated 9 th October 2018 made by Holgate J, the Claimant contends that there is a legal flaw in the Defendant's decision to publish the Framework in that it has not been the subject of strategic environmental assessment (“SEA”) pursuant to the EU Directive 2001/42/EC (“the Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the Regulations”) which transpose the Directive into domestic law. Whilst the detailed submissions of the parties will be explored below, for the purposes of introducing the issues the essence of the Defendant's case is that, in accordance with the provisions of the Directive, the Framework is neither “required by legislative, regulatory or administrative provisions” nor does it “set the framework for future development consent of projects” and therefore it is excluded from the requirement for SEA. By contrast, it is the Claimant's submission that on the proper construction of the Directive, bearing in mind the role that national policy plays in the statutory framework which is set out below, that both of these elements of the Directive are made out and that the Framework should properly have been the subject of SEA prior to its adoption.
In order to examine these competing contentions this judgment, firstly, sets out the provisions of the Directive and the jurisprudence of the Court of Justice of the European Union (“CJEU”), then examines the position of national planning policy and the Framework in the statutory framework provided by domestic law for planning decisions, and finally concludes with an evaluation of the arguments presented in favour of the need for the Framework to undergo SEA.
The Directive and related case law
The Directive contains a sequence of recitals introducing its specific legislative provisions. The recitals relevant for present purposes are as follows:
“(2) The Fifth Environment Action Programme: Towards sustainability — A European Community programme of policy and action in relation to the environment and sustainable development (5), supplemented by Council Decision No 2179/98/EC (6) on its review, affirms the importance of assessing the likely environmental effects of plans and programmes.
…
(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 in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions.
(6) The different environmental assessment systems operating within Member States should contain a set of common procedural requirements necessary to contribute to a high level of protection of the environment.
…
(15) In order to contribute to more transparent decision making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable, it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes, and that appropriate time frames are set, allowing sufficient time for consultations, including the expression of opinion.”
The specific legislative provisions which are in point in relation to the present case are set out at Articles 1, 2 and 3 of the Directive as follows:
“Article 1
Objectives
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.
Article 2
Definitions
For the purposes of this Directive:
(a) ‘plans and programmes’ shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
— which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
— which are required by legislative, regulatory or administrative provisions;
…
Article 3
…
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC”
Further articles are of some relevance to the discussion, in particular Article 4 which requires the SEA under Article 3 to be carried out during the preparation of the plan or programme and prior to its adoption. Article 5, alongside Annex 1, addresses the question of the nature of the environmental information required in order to produce a legally competent environmental report. So far as relevant for current purposes these provisions provide as follows:
“Article 5
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 I.
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
Information referred to in Article 5(1)
The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the following:
(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes;
(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;
(c) the environmental characteristics of areas likely to be significantly affected;
(d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives
79/409/EEC and 92/43/EEC;
(e) the environmental protection...
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