No Adastral New Town Ltd (Claimant/Appellant) v (1) Suffolk Coastal District Council (2) Secretary of State for Communities and Local Government (Interested Party/Respondent)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice Underhill,Lord Justice Briggs
Judgment Date17 February 2015
Neutral Citation[2015] EWCA Civ 88
Docket NumberCase No: C1/2014/0672

[2015] EWCA Civ 88

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mrs Justice Patterson

[2014] EWHC 223 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Underhill

and

Lord Justice Briggs

Case No: C1/2014/0672

Between:
No Adastral New Town Limited
Claimant/Appellant
and
(1) Suffolk Coastal District Council
Defendant/Respondent
(2) Secretary of State for Communities and Local Government
Interested Party/Respondent

Richard Buxton, Solicitor Advocate (instructed by Richard Buxton Environmental and Public Law, Cambridge) for the Appellant

Paul Shadarevian and Emma Dring (instructed by Suffolk Coastal District Council Legal Services) for the First Respondent

The Second Respondent did not appear on the appeal

Hearing dates: 21–22 January 2015

Lord Justice Richards

Introduction

1

This case relates to a planning Core Strategy ("CS") adopted by Suffolk Coastal District Council on 5 July 2013, setting the framework for development within the Council's district until 2027. The focus of attention within the CS is the housing allocation for the Eastern Ipswich Plan Area (also referred to as the Area East of Ipswich). Five locations in that area were identified as options. The location that emerged as the preferred option and became part of the adopted CS is to the east of the A12 at Martlesham, more precisely to the south and east of Adastral Park. It is described in the documentation as Option 4 or Area 4 and is the subject of Strategic Policy SP20 of the adopted CS. The housing allocation on it was originally proposed to be 1050 dwellings but was increased to 2000 dwellings in the course of development of the CS.

2

The appellant, No Adastral New Town Limited ("NANT"), is an action group of local residents opposed to the choice of Area 4 for the allocation of housing under the CS. The concern that gave rise to these proceedings relates to the proximity of the location to the Deben Estuary, which is not only a Site of Special Scientific Interest ("SSSI") but also a Special Protection Area ("SPA"), also known as a Natura 2000 site, enjoying a very high level of protection under European environmental law. At its closest, Area 4 is just over 1 kilometre from the edge of the Deben Estuary SPA. NANT's particular concern is that a large housing development so close to the SPA may result in significant disturbance to the birds on the SPA through an increase in visitor numbers and in dog walking on the site.

3

NANT brought a claim seeking to quash the relevant part of the CS. The claim was based, so far as material, on alleged breaches of the procedural requirements of two EU directives: (1) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (the Strategic Environmental Assessment Directive or "the SEA Directive"), implemented in domestic law by The Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA Regulations"); and (2) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habits and of wild fauna and flora ("the Habitats Directive"), currently implemented in domestic law by The Conservation of Habitats and Species Regulations 2010 ("the Habitats Regulations").

4

The claim was dismissed by Patterson J, sitting in the Administrative Court. Permission to appeal to this court was refused on the papers by the judge below and by Sullivan LJ on the papers but was granted on an oral renewal by Christopher Clarke LJ.

5

The process leading to the adoption of the CS in 2013 started in 2006 and went through many stages. Patterson J found that in the course of that process there were breaches of the procedural requirements of the SEA Directive with regard to the carrying out of environmental assessments and consultation of the public but that the flaws were remedied before the CS was adopted. By the first ground of appeal, NANT contends that (a) as a matter of law, the earlier deficiencies were not capable of being cured later in the process, and (b) as a matter of fact, they were not so cured.

6

The other issues in the appeal concern the judge's rejection of NANT's case under the Habitats Directive. By ground 2 NANT contends that the Council was in breach of the Directive by failing to carry out an early screening assessment. By ground 3 it contends that there was a breach of the Directive by leaving mitigation measures over to later stages ("lower-tier" plan-making or specific projects) in circumstances where sufficient information was available at the stage of adoption of the CS to enable mitigation to be determined with certainty at that time.

The legal framework

The Planning and Compulsory Purchase Act 2004 Act

7

The statutory framework for the preparation of a CS is contained in the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") and related regulations. The governing regulations for most of the relevant period were the Town and Country Planning (Local Development) (England) Regulations 2004. With effect from 6 April 2012 they were the Town and Country Planning (Local Planning) (England) Regulations 2012.

8

The relevant provisions are described in paragraphs 12–18 of the judgment below. I need only summarise the position here.

9

The 2004 Act requires a local planning authority to maintain a local development scheme involving the preparation of a CS and other local development documents, setting out the policies relating to the development and use of land in the authority's area. The preparation of a development plan document, including a CS, is subject to various procedural requirements. They include the following:

i) The local planning authority must carry out an appraisal of the sustainability of the proposals in the document (a sustainability appraisal or "SA") and prepare a report on the findings of the appraisal.

ii) Before submission to the Secretary of State (see below), a development plan document must be published and consulted upon.

iii) A development plan document must be submitted to the Secretary of State for independent examination, the purpose of which is to determine whether the document satisfies the procedural requirements relating to its preparation and whether it is sound. The independent examination is carried out by an inspector who holds an inquiry and produces a report.

iv) The decision whether to adopt the development plan document is that of the local planning authority but its powers are constrained by the recommendations in the inspector's report.

10

A person aggrieved by a development plan document may challenge it by an application to the High Court under section 113 of the 2004 Act on the ground, inter alia, that a procedural requirement has not been complied with. That is the section under which the present challenge was brought.

The SEA Directive

11

Article 3 of the SEA Directive requires Member States to carry out a strategic environmental assessment of certain plans and programmes, including a CS. Article 4 provides that the assessment shall be carried out "during the preparation of a plan or programme and before its adoption …". Article 5 provides that where an environmental assessment is required, an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives, are identified, described and evaluated. Article 6 provides for relevant authorities and the public to be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report "before the adoption of the plan or programme …".

12

The SEA Regulations contain more detailed provisions. They include specifics about the information required for environmental reports and about the consultation procedures. They are set out at paragraphs 23–26 of Patterson J's judgment. They echo the Directive in providing that an environmental assessment must be carried out "during the preparation of that plan or programme and before its adoption …" (regulation 5); that the plan or programme "shall not be adopted …" before account has been taken of the environmental report and opinions expressed by the consultation bodies and public upon it (regulation 8); that where an environmental assessment is required, 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 geographical scope of the plan or programme" (regulation 12); and that every draft plan or programme for which an environmental report has been so prepared, and the report itself, shall be made available for consultation (regulation 13).

13

The SEA process is closely bound up in practice with the procedure under domestic law for preparation of development plan documents. This is also true of the assessments required by the Habitats Directive (see below). Thus, the Government's National Planning Policy Framework states:

"165. … A sustainability appraisal which meets the requirements of the European Directive on strategic environmental assessment should be an integral part of the plan preparation process, and should consider all the likely significant effects on the environment, economic and social factors.

166. Local Plans may require a variety of other environmental assessments, including under the Habitats Regulations where there is a...

To continue reading

Request your trial
12 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT