The Queen (on the application of Rights: Community: Action) v The Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Birss |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1954 |
| Docket Number | Case No: C1/2021/0207 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1954
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lord Justice Coulson
and
Lord Justice Birss
Case No: C1/2021/0207
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
LORD JUSTICE LEWIS AND MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Paul Brown Q.C. and Mr Alex Shattock (instructed by Leigh Day) for the Applicant
Mr Rupert Warren Q.C. and Ms Anjoli Foster (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 5 October 2021
Approved Judgment
The Senior President of Tribunals
Introduction
Was it lawful for the Secretary of State for Housing, Communities and Local Government, the respondent here, to reform the planning legislation in England by making statutory instruments to adjust “permitted development” rights and to remove certain changes of use from the scope of development control, without undertaking a strategic environmental assessment under 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 SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA regulations”)? That is the basic question in this case. The answer to it, in my view, is that the Secretary of State did not act unlawfully.
The applicant, Rights: Community: Action, seeks permission to appeal against the order of the Divisional Court (Lewis L.J. and Holgate J.) dated 17 November 2020, dismissing its claim for judicial review of three statutory instruments made by the Secretary of State on 20 July 2020. The statutory instruments are the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.2) Order 2020 (“ S.I. 2020/755”), the Town and Country Planning (General Permitted Development) (England) (Amendment) (No.3) Order 2020 (“ S.I. 2020/756”) and the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (“ S.I. 2020/757”). Rights: Community: Action is a campaigning organisation; it seeks to influence the Government's approach to climate change and other environmental issues.
S.I. 2020/755 and S.I. 2020/756 came into force on 31 August 2020. They amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”): S.I. 2020/755 by permitting development involving the construction of one or two additional storeys above a single dwelling-house, or above a detached or terraced building used for commercial purposes; S.I. 2020/756 by permitting the demolition of blocks of flats and certain commercial buildings, and rebuilding for residential use. S.I. 2020/757 came into force on 1 September 2020. It amended the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”) by introducing a new commercial, business and service use class, with the effect that changes of use within that class were removed from development control.
There were three grounds in the claim, all of which the Divisional Court rejected. Only the first is maintained in this court. It contends that each of these statutory instruments should have been the subject of an environmental assessment or screened for such an assessment under the SEA Directive and the SEA regulations, which was not done.
On 21 May 2021, Stuart-Smith L.J. adjourned the application for permission to appeal to be heard by a three-judge constitution, with the appeal itself to follow immediately if permission were granted.
The main issue in the appeal
The sole ground of appeal raises this issue: whether “[the] Divisional Court erred in concluding that the three statutory instruments were not required to be subject to Strategic Environmental Assessment because they did not set the framework for future development consent of projects, or modify an existing framework for future development consent of projects”, and therefore did not fall within article 3(4) of the SEA Directive. That is the main issue for us to decide.
The SEA Directive and the SEA regulations
Article 1 of the SEA Directive states that “[the] objective of this Directive is to provide for a high level of protection of the environment … by ensuring that … an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment”.
“Plans and programmes” are defined in article 2(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 …”.
The scope of the SEA Directive is described in article 3, which states:
“1. An environmental assessment, in accordance with articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects.
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for … 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 [the EIA Directive] …
…
4. Member states shall determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects.”
“Development consent” is not defined. Draft article 2(c) of the Commission's original proposal for the SEA Directive stated that “‘development consent’ means the decision of the competent authority which entitles the developer to proceed with a project”, but that definition was not in the end included.
The SEA Directive was transposed into domestic law by the SEA regulations. Regulation 5(4)(b) requires an environmental assessment to be carried out for a plan or programme where it “sets the framework for future development consent of projects”. The definition of “plans and programmes” in regulation 2(1) is substantially the same as in article 2(a) of the SEA Directive. Regulations 8 and 9 require a plan or programme falling within the scope of the SEA regulations to be subject to a screening decision determining whether it is “likely to have significant environmental effects”, and, if it is determined that that is so, preclude its adoption until an environmental assessment has been carried out and the environmental report for it taken into account.
The relevant European Union and domestic jurisprudence has yielded several principles relating to the concept of “plans or programmes … which set the framework for future development consent of projects”. Most recently, in Compagnie d'entreprises CFE SA v Région de Bruxelles-Capitale (Case C-43/18) [2020] Env. L.R. 11 the Court of Justice of the European Union (“the CJEU”) observed (in paragraph 36 of its judgment) that, “given the objective of the SEA Directive, which is to provide for so high a level of protection of the environment, the provisions which delimit the directive's scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly ([ Inter-Environnement Bruxelles ASBL v Région de Bruxelles-Capitale (Case C-671/16) EU:C: 2018:403] [“ IEB 2”] and Thybaut v Région Wallonne (Case C-160/17) [2019] Env L.R. 8] and the case law cited)”. It went on to emphasise some other principles that are also well established (in paragraphs 61 to 64 of its judgment):
“61. … [The] court has held that the notion of “plans and programmes” relates to any measure which establishes, by defining rules and procedures, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment … .
62. In the present case, it is apparent … that the decree of 14 April 2016 designates a Natura 2000 site, and, in order to achieve the conservation and protection objectives it defines, provides for preventive measures and lays down general and specific prohibitions. To that end, it reflects choices and forms part of a hierarchy of measures intended to protect the environment, in particular the management plans to be adopted in the future.
63. … [The] referring court notes that the designation of a site has legal effects on the adoption of plans and on the consideration of applications for permits affecting the site, both procedurally and in terms of the criteria according to which decisions are made. That court therefore takes the view that such a designation contributes to setting the framework for activities that are, in principle, to be accepted, encouraged or prohibited, and thus is not unconnected with the concept of “plan or programme”.
64. It is apparent from the judgments in [ IEB 2] at [55] … and Thybaut at [55] … that the concept of “significant body of criteria and detailed rules” must be construed qualitatively.”
It went on to say (in paragraph 67) that “in so far as such a measure would not satisfy the conditions...
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