Heard v Broadland District Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 24 February 2012 |
| Neutral Citation | [2012] EWHC 344 (Admin) |
| Docket Number | Case No: CO/3983/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2012 |
[2012] EWHC 344 (Admin)
Mr Justice Ouseley
Case No: CO/3983/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R Harwood (instructed by Richard Buxton Solicitors) for the Claimant
Mr W Upton (instructed by Sharpe Pritchard Solicitors) for the Defendants
Hearing dates: 6 th and 7th December 2011
The Claimant, Mr Heard, challenges the adoption by the Defendants of their Joint Core Strategy on 22 March 2011, a development plan document created under the Planning and Compulsory Purchase Act 2004 for their areas. The challenge is brought under s113 of that Act, on the grounds that the Joint Core Strategy, JCS, was not within the powers of the Act, or there had been a procedural failing which had prejudiced the Claimant.
The three Defendants are district councils: Broadland DC and South Norfolk DC which surround Norwich City Council's area to the north and south respectively. The three have co-operated to produce a Joint Core Strategy for their areas. This includes the Norwich Policy Area, NPA, which covers the whole of the City Council's area and, putting it very broadly, the parts of the other two Councils' areas which lie closer to the City.
Part of the JCS involves meeting the growth requirements for the NPA laid down in the Regional Spatial Strategy, RSS, as adopted in 2008; it is now the Regional Strategy. The JCS, in order to meet its statutory obligation to conform generally to the RSS, had to provide for the stipulated levels of growth; but it was for the JCS to decide where that should take place. The JCS includes, as part of its provision for the RSS requirement, major growth in an area to the north east of Norwich known as the North East Growth Triangle, predictably, NEGT.
Mr Heard is a resident in that area north east of Norwich which is earmarked for major growth in the JCS. He is the chairman of an action group, Stop Norwich Urbanisation, SNUB. Although opposed to urbanisation generally, Mr Heard contends that the JCS is unlawful because the Strategic Environmental Assessment, SEA, which the Councils had undertaken, did not comply with two requirements: first, that it explain which reasonable alternatives to urban growth in the North East Growth Triangle they had selected to examine and why, and second, that it examine reasonable alternatives in the same depth as the preferred option which emerged. It was not said that the examination of the preferred option was itself inadequate, nor that changes in circumstance required a further examination of previously discarded alternatives. The Defendants contended that the work they had done was sufficient for these purposes.
His second ground was that the Strategic Environmental Assessment was further unlawful since it did not assess the impact of a proposed new highway, the Northern Distributor Road, the NDR, or of alternatives to it. The NDR was fundamental to the achievement of the full development of the North Eastern Growth Triangle, though there was a case for it even without that development. The Defendants contended that the NDR had been adequately assessed in documents prepared by the highway authority, Norfolk County Council, and that although the JCS supported and in some ways promoted the NDR, it was not for it to assess it or to consider alternatives to it. The County Council was part of the informal Greater Norwich Development Partnership, GNDP, with the three District Councils.
The legislative framework
A plan such as the JCS has to be subject to what is called Strategic Environment Assessment, by virtue of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment." This has been transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 SI no.1633. Regulation 8 prohibits a plan being adopted until regulation 12, amongst others, has been complied with. Regulation 13 requires the plan, when in draft, and its accompanying environmental report to be subject to public consultation. Regulation 8 prohibits the adoption of a plan before the environmental report and the consultation response have been taken into account. These reflect requirements of the Directive. Environmental assessment is thus, as Mr Upton submitted, a process and not merely a report.
Regulation 12 (2) (b) requires an environmental report "to identify, describe and evaluate the likely significant" environmental effects of implementing the plan, and of "reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme". The report has to include such of the information set out in Schedule 2 as is reasonably required although it can be provided by reference to relevant information obtained at other levels of decision-making. Item 8 in the Schedule is "an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties…encountered in completing the information." Mr Upton for the Defendants emphasised the word "outline". It is not, he said, a requirement to give reasons for selecting the option eventually pursued; but one would normally expect them to emerge reasonably clearly from the assessments.
European Commission has provided guidance on Article 5(1) of the Directive, the equivalent of regulation 12 of the UK Regulations, as to what level of assessment is required for alternatives. Alternatives to the option being promoted should be evaluated on the same basis and to the same level as the option promoted in the plan:
"In requiring the likely significant environmental effects of reasonable alternatives to be identified, described and evaluated, the Directive makes no distinction between the assessment requirements for the drafted plan or programme and for the alternatives. The essential thing is that the likely significant effects of the plan or programme and the alternatives are identified, described and evaluated in a comparable way. The requirements in Article 5(2) concerning scope and level of detail for the information in the report apply to the assessment of alternatives as well. It is essential that the authority or parliament responsible for the adoption of the plan or programme as well as the authorities and the public consulted, are presented with an accurate picture of what reasonable alternatives there are and why they are not considered to be the best option. The information referred to in Annex I should thus be provided for the alternatives chosen."
Mr Upton suggested that it was too simplistic to say that all alternatives had to be assessed to the same degree throughout a process in which, as the Directive and Regulations envisaged, options were progressively narrowed and discarded as successive stages moved towards a preferred option. Those options discarded at earlier stages did not have to be revisited at every subsequent stage; see City and District Council of St Albans v Secretary of State for Communities and Local Government [2009] EWHC 1280 (Admin), Mitting J para 14.
The guidance also deals with what constitutes a reasonable alternative: it must be realistic, fall within the legal and geographic competence of the authority, but it otherwise depends on the objectives, and geographical scope of the plan. Alternative areas for the same development are an obvious example. The longer term the plan, the more likely it will be that it is alternative scenarios which are examined.
Article 1 of the Directive is relevant because it makes clear that the objective of the Directive in providing for environmental assessment is to protect the environment and integrate environmental considerations into the adoption of plans with a view to "promoting sustainable development". This, with Article 4, which permits a national authority to integrate compliance with the Directive into national procedures, has led to the practical implementation of the Directive through the requirement in s19(5) of the 2004 Act that a plan be subject to a Sustainability Appraisal, SA, rather than through a separate document entitled an environmental report. Article 4(3) also recognises that there may be a hierarchy of plans, and that the assessment will be carried out at different levels.
To avoid duplication in this process, Article 5(2) permits the decision as to what information is reasonably required to take account of "the contents and level of detail in the plan …, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process…." This is reflected in regulation 12 of the domestic Regulations. Mr Harwood for the Claimant submitted, and I accept, that while options can be rejected as the plan moves through successive stages, and do not necessarily require to be re-examined at each stage, a description of what alternatives were examined and why had to be available for consideration at each stage, even if only by reference back to earlier documents, so long as the reasons there given remained sound. But the earlier documents had to be organised and presented in such a way that they could readily be ascertained and no paper chase was required to find out what had been considered and why it had been rejected; see Save Historic Newmarket Ltd v Forest Heath District Council [2011] EWHC 606 (Admin), Collins J, paras 17 and 40.
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