R Friends of the Earth England, Wales and Northern Ireland Ltd v The Welsh Ministers

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Hickinbottom
Judgment Date26 March 2015
Neutral Citation[2015] EWHC 776 (Admin)
Docket NumberCase No: CO/4433/2014
Date26 March 2015

[2015] EWHC 776 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT IN WALES

Cardiff Civil Justice Centre

2 Park Street

Cardiff

CF10 1ET

Before:

Mr Justice Hickinbottom

Case No: CO/4433/2014

Between:
The Queen on the Application of Friends of the Earth England, Wales and Northern Ireland Limited
Claimant
and
The Welsh Ministers
Defendant

Alex Goodman and Matthew Dale-Harris (instructed by Deighton Pierce Glynn) for the Claimant

Jonathan Moffett and Tom Cross (instructed by Geldards LLP) for the Defendant

Hearing dates: 10–12 March 2015

Mr Justice Hickinbottom

Introduction

1

The M4 motorway is a vital transport route across South Wales. However, near Newport, there are sections of the motorway which do not have the capacity to accommodate the volume of traffic that uses it, resulting in high levels of congestion, traffic jams, accidents and pollution. These problems have been apparent for over 20 years, and have worsened over time. They are predicted to worsen further in the future. There is no doubt that the transport arrangements around Newport are in need of improvement.

2

On 16 July 2014, on behalf of the Welsh Ministers, the Minister for Economy, Science and Transport Edwina Hart AM ("the Minister") announced the decision to adopt a plan called "M4 Corridor Around Newport" ("the Plan"), which provides for a new section of motorway to be constructed to the south of Newport between current M4 Junctions 23 (Magor) and 29 (Castleton) and various complementary measures including the reclassification of the current route of the motorway between those points to a trunk road. The new stretch of motorway would run across the Gwent Levels, an area comprising several Sites of Special Scientific Interest ("SSSIs") and the River Usk Special Area of Conservation ("SAC").

3

This claim was issued on 23 September 2014 by the Claimant, which is a well-known and respected environmental organisation. In the claim as issued, it is contended that the adoption of the Plan should be quashed on three grounds (the order being mine):

Ground 1: The decision-making process that led to the adoption of the Plan was unlawful, in that, in a number of respects, it failed to comply with European Council and Parliament Directive 2001/42/EC, commonly known as the Strategic Environmental Assessment Directive ("the SEA Directive"), implemented in Wales by the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 (SI 2004 No 1656) ("the 2004 Regulations"). Several sub-grounds are pleaded; but the foundation of the Claimant's case is that the process by which the Plan was adopted failed properly to identify, describe and evaluate all reasonable alternatives (and particularly alternatives that did not involve a motorway being constructed across the protected sites) on a comparable basis to the Plan. The SEA Directive requires assessment of the significant environmental effects of, not only the preferred option, but of all potential viable alternatives. The preferred plan and all of the alternatives canvassed in the SEA Report involve a highway crossing the Gwent Levels. Because the vital decision – to put a highway across the protected sites – had been already been taken before the SEA process began, the Minister, without any environmental assessment as required by the SEA Directive, foreclosed the possibility of adopting a plan that did not involve such a highway; and, thus, the SEA Directive's objective of integrating environmental considerations into the preparation and adoption of plans was frustrated. This ground raises starkly the issue of what is meant by "reasonable alternatives" in the SEA Directive.

Ground 2: In adopting the Plan, the Minister failed to take reasonable steps to further the conservation and enhancement of the flora and fauna of the SSSIs over which the proposed route runs, as required by section 28G of the Wildlife and Countryside Act 1981.

Ground 3: The Plan failed to take into account the Welsh Government's own policies with regard to reduction of carbon emissions.

4

On 31 October 2014, Dove J ordered the application for permission to proceed be listed for hearing on a rolled-up basis so that, if permission were granted, the substantive claim would immediately follow.

5

At that hearing before me, Alex Goodman and Matthew Dale-Harris appeared for the Claimant, and Jonathan Moffett and Tom Cross for the Welsh Ministers. I thank them all for their considerable assistance.

6

During the course of the hearing, Mr Goodman abandoned reliance on Ground 3, and I formally refuse permission to proceed on that ground. This judgment is concerned with Grounds 1 and 2.

The SEA Directive

7

In due course, I will need to look at the SEA Directive in some detail but, at the outset, an indication of where it fits into the legal framework for environmental protection might assist, before I move on to deal with the facts of this case.

8

One of the earliest impacts of European law on town and country planning in this jurisdiction was Council Directive 85/337/EC ("the EIA Directive"), which came into force in 1988. In considering applications for certain major development projects, the EIA Directive requires an Environmental Impact Assessment ("EIA"), i.e. the presentation, collection, publication and assessment of information on the environmental effects of the proposed project. The Directive was implemented in Wales by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999 No 293). Under those regulations, the construction of motorways and express roads falls within Schedule 1, and consequently an EIA is mandatory.

9

The EIA focuses upon the environmental assessment of major projects that are likely to have a substantial impact on the environment. However, by the time consent for development in respect of such a project is being considered, prior decisions may have been taken which effectively limit the room for significant change. The SEA Directive seeks to address that issue by requiring strategic environmental assessment ("SEA") to be an integral part of plans and programmes, so that potentially environmentally-preferable alternatives are not discarded as part of the process of approving plans and programmes without proper consideration of the environmental impacts of the various options.

10

As Lord Reed JSC noted in Walton v Scottish Ministers [2012] UKSC 44 at [12]–[13], this was lucidly explained by Advocate General Kokott in her opinion in Terre Wallonne ASBL v Région Wallone [2010] 1-ECR 5611; [2010] EUECJ C-105/09, at [31]–[33]:

"31. The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.

32. The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures (Proposal for a Council Directive on the assessment of the effects of certain plans and programmes on the environment, COM (96) 511 final, page 6). Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context.

33. An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included."

11

Thus, as Lady Hale succinctly put it in R (Buckinghamshire County Council and Others) v Secretary of State for Transport [2014] UKSC 3 at [155]:

"The aim of the [SEA] Directive is not to ensure that all development proposals which will have major environmental effects are preceded by [an SEA]; rather, it is to ensure that future development consent for projects is not constrained by decisions which have been taken 'upstream' without such an assessment, thus pre-empting the environmental assessment to be made at project level."

12

The SEA Directive is expressly procedural in nature (see recital (9)). It does not impose any substantive duties on the relevant authority: it rather seeks to improve the quality of decision-making for development by requiring the authority to assess the potential environmental effects of a particular plan or programme before its adoption. Its aim is to ensure that future planning decisions are not constrained by earlier strategic decisions; so that article 5 of the SEA Directive requires that the likely significant environmental effects of a 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". Those options must be the subject of public consultation in the form of a report with the draft plan or programme (article 6); and, before the adoption of the plan or programme, the results of that consultation must be taken into account by the...

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