NEIGHBOURHOOD PLANS & ENVIRONMENTAL LAW UKELA/PEBA Seminar, 20 April 2015

Presented by James Corbet Burcher Barristers, No5 Chambers

Overview

•  R(BDW Trading Ltd (t/a Barratt Homes) v Cheshire West and

Chester BC [2014] EWHC 1470 (Admin)

•  R(Larkfleet Homes Ltd) v Rutland CC [2014] EWHC 4095 (Admin)

•  R(Gladman) v Aylesbury Vale DC [2014] 4323 (Admin)

•  Other Current Cases: Screening Opinions, SANGS

•  Why Does Environmental Assessment Matter?

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The Basic Conditions

§  8(2)(a) Having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the [plan];

§  (d) The making of the [plan] contributes to the achievement of sustainable development;

§  (e) The making of the [plan] is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area);

§  (f) The making of the [plan] does not breach, and is otherwise compatible with, EU obligations; and

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Basic Condition 8(2)(f): SEA

§  SEA Directive 2001/42/EC §  Environmental Assessment of Plans and Programmes 2004 §  Regulation 5 : Environmental Assessment §  Regulation 12(2): (2) 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

the geographical scope of the plan or programme.

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Basic Condition 8(2)(a): Guidance

§  (National) Planning Practice Guidance §  Neighbourhood Planning, paragraphs Paragraph: 078 Reference

ID: 41-078-20140306 and Paragraph: 080 Reference ID: 41-080-20150209

§  Step 2: Preparing a draft neighbourhood plan or Order: Qualifying body develops proposals (advised or assisted by the local planning authority): • determine whether a plan or an Order is likely to have significant environmental effect

§  Step 3: Pre-submission publicity & consultation: •where European Obligations apply, complies with relevant publicity and consultation requirements

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Basic Condition 8(2)(a): Guidance §  Strategic Environmental Assessment etc: Paragraph: 026

Reference ID: 11-026-20140306 to Paragraph: 045 Reference ID: 11-045-20140306

§  Paragraph: 029 Reference ID: 11-029-20150209: “Where it is determined that a neighbourhood plan is likely to have significant effects on the environment and that a strategic environmental assessment must be carried out, work on this should start at the earliest opportunity.”

§  Paragraph: 030 Reference ID: 11-030-20150209: “It does not need to be done in any more detail, or using more resources, than is considered to be appropriate for the content and level of detail in the neighbourhood plan.”

§ 

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Basic Condition 8(2)(a): Guidance §  Strategic Environmental Assessment etc: continued §  Paragraph: 031 Reference ID: 11-031-20150209 §  “One of the following documents must be included with a

neighbourhood plan proposal when it is submitted to the local planning authority:

§  1. a statement of reasons for a determination under regulation 9(1) of the Environmental Assessment of Plans and Programmes Regulations 2004 that the proposal is unlikely to have significant environmental effects or

§  2. an environmental report prepared in accordance with paragraphs (2) and (3) of regulation 12 of the Environmental Assessment of Plans and Programmes Regulations 2004”

§ 

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Tattenhall §  R(BDW Trading Ltd (t/a Barratt Homes) v Cheshire West and

Chester BC [2014] EWHC 1470 (Admin) §  Claimant: SA/SEA expressly disavowed alternatives other

than that proposed in the TNP – and no consideration of limiting the impact on other development coming forward outside TNP [64]-[66]

§  Defendant: Acknowledged no appraisal of any discrete policy alternatives only two strategic alternatives [69]

§  NB Claimant did not raise SEA in reps or at examination,

before issuing its Pre-Action Protocol Letter [70]

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Tattenhall §  “74 In Persimmon Homes (Thames Valley) Ltd v Taylor Woodrow

Homes Ltd [2006] 1 WLR 334 , Laws LJ stated at para 22: “The question whether there is general conformity between the plans is

a matter of degree and, as it seems to me, of planning judgment.”

I accept Mr Sauvain's submission that similarly, as the issue raised by the Claimants is not whether a SEA/sustainability appraisal was produced but whether it adequately addressed the suitable alternatives, the question is whether the Examiner's conclusion that the TNP was compatible with EU obligations is again a matter of planning judgment.”

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Tattenhall §  “75 Mr McGurk concluded that the legal requirements of the

SEA directive were met (see para 31 above). In my view the level of consideration of alternatives in the sustainability assessment was sufficient to meet the requirements of the SEA Directive and the Regulations. For the reasons given at paragraphs 3.17-3.19 of the SA no other options-testing was reasonably required. The TNP was supported by a Basic Conditions Statement (May 2013) which set out how the plan complied with the Basic Conditions which included a section on compatibility with EU Regulations and the conclusion that the TNP is compliant with EU obligations (see paras 24-25 above). I reject the Claimants' criticisms of the sustainability appraisal process that was conducted. In my judgment the Council did properly comply with the SEA Directive.”

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Tattenhall §  BUT What had the Examiner actually concluded at [31]?

§  “Together, the SA and SR provide a thorough, detailed consideration of the Neighbourhood Plan's sustainability credentials. Their content is thorough and comprehensive and I find it clearly demonstrates how the SA in particular has supported the plan-making process, by testing its proposals in the light of a clearly defined methodology.

§  The overall approach to assessing the Neighbourhood Plan's environmental, social and economic effects meet the legal requirements of the EU's SEA Directive.” (p9)”

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Tattenhall §  And the SA at 3.17-3.19? 3.17 …An exhaustive process of identifying, exploring and

testing options has therefore not been appropriate or necessary in this instance.

3.18 To help quantify the likely effects of producing a Neighbourhood Plan a ‘do nothing’ option has also been assessed. This identifies the likely sustainability impacts that would occur if the Neighbourhood Plan was not adopted and existing policies at the national, regional and Borough level were in place.

3.19 The ‘do nothing’ appraisal has been undertaken on the basis of [short-term: existing local plan, mid-term: emerging local plan]

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Uppingham §  R(Larkfleet Homes Ltd) v Rutland CC [2014] EWHC 4095

(Admin)

§  Ground 3: The screening report fail[ed] to consider any positive effects which the UNP might have on the environment and the failure render[ed] it unlawful [24]

§  UNP: “Following these findings it is therefore concluded that the implementation of the UNP would not result in any likely significant effects upon the environment”; “The assessment found no negative significant effects will occur as a result of the UNP.” “The assessment of the UNP policies identified no significant negative effects and as such the UNP does not require a full SEA to be undertaken”.

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Uppingham §  R(Larkfleet Homes Ltd) v Rutland CC [2014] EWHC 4095

(Admin)

§  Ground 3: The screening report fail[ed] to consider any positive effects which the UNP might have on the environment and the failure render[ed] it unlawful [24]

§  UNP: “Following these findings it is therefore concluded that the implementation of the UNP would not result in any likely significant effects upon the environment”; “The assessment found no negative significant effects will occur as a result of the UNP.” “The assessment of the UNP policies identified no significant negative effects and as such the UNP does not require a full SEA to be undertaken”.

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Uppingham §  “29 It is, I think, not surprising that possible ‘significant’ negative

effects should have been at the forefront of the author's mind, particularly as he was aware of the previous reports and their findings. As I have said, it is unfortunate that he has given the opportunity in the way he has expressed himself to the contention that he failed to consider whether there were any positive significant effects. But I am not persuaded that on an overall reading and knowledge of the author's clear recognition of what the legislation required of him and his familiarity with the previous reports on the Core Strategy and the SAPDPD he did not, however badly he expressed himself, fail to consider positive when he concluded that there were no significant effects.”

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Winslow §  R(Gladman) v Aylesbury Vale DC [2014] 4323 (Admin) §  WNP Policy 2: Settlement Boundary: Criteria for development

and then: “Proposals for housing development outside the Winslow Settlement Boundary will only be granted in exceptional circumstances.”

§  8.8 This policy carries the most importance of the WNP as it establishes the key principle within which all other policies, especially those that allocate land for development, have been designed. Essentially, there are two possible spatial strategies, assuming that there will be a maximum quantum of housing development within the plan period:

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Winslow §  [1] infill the existing settlement to its current physical

boundaries and respond to the alignment of the ‘East West Rail’ line on the northern boundary – this is the chosen strategy on which Policy 2 has been based

§  [2]extend the town beyond those boundaries in any one of a number of directions south-west, south, south-east, east and north-east – this is the strategy that could have formed an alternative policy

§  8.9 The two strategies are compared above. Notwithstanding the fact that it may be impossible to confine development to only one direction beyond the town boundary, the alternative policy scores badly against the WNP policy on almost all environmental objectives.

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Winslow

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Winslow §  Examiner: “It is my view that there is implicit recognition

within Planning Practice Guidance of the unique nature of neighbourhood planning. Whilst it is essential – and indeed, a Basic Condition – that neighbourhood plans are compatible with European legislation, there is no expectation, or requirement, for neighbourhood plans to be accompanied with an SEA that includes more detail, or that would require more resources to produce, than is appropriate for the content and level of detail in the neighbourhood plan.

§  Taking this into account and with reference to the fact that “the local planning authority must decide whether the draft neighbourhood plan is compatible with EU regulations,” it is reasonable to conclude that the responsibility for determining what is appropriate for the content and level of detail in the neighbourhood plan should lie with the local planning authority.”

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Winslow §  Claimant: [85] “The condition in paragraph 8(2)(f) of Schedule

4B to the 1990 Act requires the [Examiner] to be satisfied that the Neighbourhood Plan does not breach and is otherwise compatible with obligations derived from European Union law.”

§  Defendant: Shadwell Estates, Ashdown Forest

§  Judgment: [92] In my judgment, the examiner did address the requirements of the Directive. He recognised that the Neighbourhood Plan must be compatible with the Directive but noted that it was not required to include more detail than was appropriate for the content and level of detail in the plan.

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Winslow §  Strategic environment assessment report itself; §  Review of consultation process, including absence of

objections §  Considered that the Town Council had sought to assess

environmental impacts “at a level of detail and using resources appropriate for the content and level of detail in the Neighbourhood Plan”.

§  Satisfied that the Neighbourhood Plan did meet the requirements of EU law.

§  “In my judgment, that was a conclusion that was open to the examiner.”

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Winslow §  “The claimant may be critical of the level of detail and may

wish for more detail, particularly, on why the settlement boundary was drawn as it was and why sites outside the settlement boundary were not allocated for housing. The examiner was entitled to conclude, however, that this Neighbourhood Plan, dealing with the allocation of 455 new houses, did include a sufficient level of detail explaining that the allocation was based on the current form of the town whereas an alternative strategy, based on expansion in other directions, would have greater environmental impact.”

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Other Cases §  Other Cases (currently at various pre-action and post-issue

stages)

§  In the Habitats context: Is it lawful to allocate all proposed Neighbourhood Plan sites within an SPA/SAC 7km zone when there is no SANG presently available?

§  In the SEA context: When is an LPA required to publish its

screening opinion?

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Why does Environmental Law Matter? §  SEA Directive: Complex, expensive, technical, slow §  BUT these are 15-16 year plans §  There is no statutory provision to “review” a Neighbourhood

Plan, much less “amend” it §  Conflict with such plans is being accorded “very substantial

negative weight” §  SEA has an important role to play in terms of making sound

policy choices and the Directive is being actively marginalised §  Tattenhall: “planning judgement” §  Uppingham: decision-maker “well aware” §  Winslow: not “more detail, or that would require more

resources to produce, than is appropriate for the content and level of detail in the neighbourhood plan.”

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