Bar Focus | Room at the top?

Under EU law (now consolidated EIA Directive 2011/92/EU) there is a basic requirement to take into account environmental information, which includes the results of public consultation, before granting consent for development.

A major limitation is that project consent decisions are often influenced by higher level strategies that effectively predetermine a certain level of environmental impact. According to the EU Commission, in order to "plug this gap", Directive 2001/42/EC was enacted that mandates strategic environmental assessment (SEA) of certain plans and programmes.

While the ramifications of the enrionmental impact assessment (EIA) Directive have been extensively tested in the courts, SEA is less well known. Because major infrastructure or regeneration proposals are almost always underpinned by some kind of strategic support, it is critical to understand when high level strategies fall within the ambit of the SEA Directive, otherwise decisions may bypass full public participation and proceed on an unlawful basis.

SEA has been considered in two very recent infrastructure cases: HS2 and the challenge before the Northern Ireland High Court over the A5 north-south duelling road link in Ireland.

Weighing up the optionsUnder Directive 2001/42/EC (transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004) where a plan or programme is likely to have significant effects on the environment, it must be subject to environmental assessment, including the preparation of an environmental report and public consultation. The results of that process must be taken into account before the plan or programme is adopted. The environmental report must consider "reasonable alternatives" and outline the reasons for selecting any preferred option. Plan promoters are not entitled to ignore alternatives, or only to consider a certain type of (or certain area for) development. As Ouseley J emphasised in Heard v Broadland DC [2012] EWHC 344 (Admin) "... alternatives have to be assessed, whether or not to the same degree as the preferred option, all for the purpose of carrying out, with public participation, a reasoned evaluative process of the environmental impact of plans or proposals". The documents in that case were in themselves "perfectly sensible" and "could not be stigmatised as unreasonable", but had not complied with the directive so fell to be quashed.

SEA applies to plans or programmes, not policy. Furthermore, it appears that the European Council (perhaps envisaging practical problems) intended SEA to apply to a limited range of plans or programmes. Plans or programmes are caught by the directive so that an environmental report must be prepared only if they are:

• subject to preparation and/or adoption by an authority or through a legislative procedure and "are required by legislative, regulatory or administrative provisions" (article 2(a)); and

• prepared for certain sectors (including town and country planning) and "set the framework for future development consent of projects" (article 3(2)(a)).

Plainly not all plans or programmes will meet these criteria. However, in Case C-567/10 Inter-Environnement Bruxelles the CJEU held (contrary to the opinion of the Advocate General) that "required" did not mean compulsory - as that "would have the consequence of restricting considerably the scope of the scrutiny" of the directive (for example, member states could choose to adopt voluntary plans and programmes to evade EU law). Instead, all plans or programmes whose adoption "is regulated by national or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as 'required'". Given this relaxation, the crucial question in many cases will be whether or not the plans or programmes "set the framework" for other decisions. These are undoubtedly difficult distinctions. However, there can in any given case only be one right answer - it is a question, if necessary, for the judgment of the court.

Setting a frameworkIn Alternative A5 Alliance's Application for Judicial Review (judgment of Stephens J 12 March 2013), the challenge was to the decision to proceed with parts of an 85km road scheme that was said "to upgrade the entire A5 to dual-carriageway from the Irish border near Aughnacloy, via Omagh and Strabane, to [London]Derry". At an inquiry over the decision inspectors considered that a 2008 programme for government had prescribed a dual carriageway and refused to look behind that prescription. On that basis, the A5 Alliance challenged the programme for government, together with a national Investment Strategy and departmental Investment Delivery Plan on the basis that those documents had not been subject to SEA, which was not disputed. On whether the documents were "required by legislative, regulatory or administrative provisions" Stephens J considered (following the CJEU's interpretation) that they were - the documents are drawn up under the devolution arrangements made by the Northern Ireland Act 1998.

On whether the documents "set a framework" Stephens J considered the authorities and concluded that in order to set a framework, a plan or programme "has to define criteria and the detailed rules for the development of land" - in the case a single, high level detail, namely that the route be dual carriageway, was sufficient. Accordingly, there should have been SEA, but the judge considered the argument to be out of time as judicial review proceedings should have been made within three months of the adoption of the documents (in 2008). The applicants were successful on other grounds in relation to breaches of the Habitats Directive and the Fresh Water Fish Directive. On 15 March 2013 Ouseley J handed down his decision mostly (but not entirely) rejecting the well-publicised challenge by residents, local authorities and local businesses to the government's decision to proceed with the first phase of a new high speed rail link north of London ([2013] EWHC 418 (Admin)).

The focus of the challenge was a command paper entitled High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (dated 12 January 2012). That document effectively set out the government's preference for pursuing a Y shaped network of fast trains through a hybrid bill in parliament in two phases (with a possible third phase linking to Scotland to follow). The claimants said that the document was a plan or programme; government said it was merely high level policy.

The claimants argued that the 2012 command paper was "required" in the context of earlier publications that had set a process for its production and created an expectation of consultation. While this was a possibility, Ouseley J concluded that government was not bound by its earlier statement of intent in any way. Nor did he consider that the document "set the framework" for future development consents: parliament being sovereign was "entirely free to accept or reject" the proposal. Accordingly, the document was not a plan or programme to which SEA applied. However, had the judge concluded that SEA applied, he would not have concluded that the provisions of the directive had been substantially complied with, for two reasons. First, the environmental impact of the whole of the Y network was not assessed (only phase 1). Second, while reasonable alternatives to a high speed Y network had been rejected on an economic case, there had been no environmental assessment of the alternatives. Ouseley J gave permission to appeal his decision on the SEA ground, so the matter may not be settled.

The definition of plan or programme has widened, however exactly how far remains unclear. As noted by Ouseley J in HS2, "required" has to add something; there must be some administrative, regulatory or legislative or context to the production of a plan or programme. HS2 suggests that a previous articulation of policy might be sufficient, although it will depend on the facts of the case. A purposive interpretation of "required" should generally be taken, so that if there is some formal setting to a document, it falls to be considered. However, the correctness of the broad approach in Inter-Environnement Bruxelles was doubted in Walton v Scottish Ministers [2013] UKSC 44 (although according to EU law it is the CJEU and not the national Supreme Court which is final arbitrator). The Supreme Court is in May 2013 due to hear the appeal against the Northern Ireland Court of Appeal's decision in Central Craigavon Ltd's Application for Judicial Review [2011] NICA 17, which pre-dated Inter-Environnement Bruxelles and where the Court of Appeal considered that the production of a Planning Policy Statement under non-compulsory administrative arrangements was not "required". The Supreme Court will need to address the matter directly and may seek to distinguish Inter-Environnement Bruxelles.

There is no less doubt over the meaning of setting a "framework". This implies some degree of detail and influence, but how much is unclear. A5 Alliance suggests that a single important detail is sufficient. One approach to the question of influence could be that wherever a plan or programme is a necessary material consideration in subsequent decisions that will suffice. It is arguable in HS2 that Ouseley J overstated Parliament's independence and ability to consider alternatives. A district planning authority is independent from a county planning authority, but that does mean that county plans fall without the requirement for SEA. The solution in HS2 effectively disapplies SEA in cases where the hybrid bill procedure is used, which is hard to justify from the wording of the directive.

Whatever the correct approach, there are likely to be many further difficulties in interpreting and implementing the directive. For example, some documents will contain elements that are a plan or programme, and elements that are something else. Presumably, only the formal parts that set a framework will require SEA. Other documents may set out the details of a project, rather than a framework for many projects, in such a case a decision will need to be made as to where (strategic) SEA ends and (project-specific) EIA begins.

If a plan or programme is found to breach the SEA Directive, it does not necessarily mean that it will be quashed. The Supreme Court in Walton expressed the view that it would not have quashed the document had they found favour with the challenge. In A5 Alliance, Stevens J found that the various documents had not complied with EU law, but refused to grant relief because the challenge was out of time. If a court has found a plan or programme to be unlawful, leaving it in place seems undesirable and creates uncertainty over what (if any) weight a future decision maker should give to it. In some cases it may be possible to carry out a further or addendum SEA to remedy the unlawfulness (see eg Cogent Land v Rochford DC [2012] EWHC 2542 (Admin)), but it is hard to see that this could (or should) be common practice. In most cases where a timely challenge is successfully run, there will be little alternative but to quash a plan or programme, which may set big scheme back many years. SEA looks set to remain a difficult and thorny issue for developers and decision makers alike.