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Problems with the incorporation of the Strategic Environmental Assessment Directive into our law


HS2 tunnelI was prompted by an article about this to consider the SEA directive more fully[1].  The SEA Directive is rather broadly written.  It requires environmental assessment of “plans and “programmes” which are likely to have significant environmental effects.  But the problem is deciding what is a “plan or programme”.

The definition says they include plans and programmes (and modifications to them) which are (a) required by legislative, regulatory or administrative provisions and (b) are either (i) subject to preparation/adoption by an authority, at national regional or local level or (ii) prepared by an authority for adoption through a legislative procedure by Parliament or Government.  The directive also says that all plans and programmes prepared for (amongst other things) transport and town and country planning) which also “set the framework for future development consent of projects [falling under the normal Environmental Assessment Directive]” are to be assessed.

The issue arose seriously in England with HS2, the proposed high speed rail link from London to Birmingham and beyond (litigated in HS2 Action Alliance and others v. SoS for Transport [2013]EWCA Civ 920).  The Government announced its intention to build HS2 in a Command Paper (High Speed Rail, Decisions and Next Steps) which also said that the necessary powers and planning permission would be sought by a hybrid Bill through Parliament.  There was no assessment of the environmental effects under the SEA directive. But assessment would be done under the normal Environmental Assessment Directive at the hybrid Bill stage.  The complaint of HS2 Action Alliance in practical terms was that SEA requires wider consideration of alternatives than normal EA.  Indeed one of the reasons for SEA is that it allows for assessment of plans which are setting the scene and which will influence subsequent decisions, so alternatives are important as the field is narrowed.

HS2 Action Alliance claimed the Command Paper (usually called DNS) was a plan or programme required by administrative provisions which set the framework for future development consent.  So was it or not?

The problem is obvious; this is a high level plan in which the Government says it has decided it is going to build HS2.  It’s going to go from London to Birmingham so the route is broadly defined, though no doubt there can be wiggles (or more likely sweeping curves) and tunnels to avoid sensitive areas. But there are going to be constraints on that, and compromises.  The jurisprudence of the European Court of Justice maintains that broad approach to the directive:  for example it says “the definitions … must be interpreted broadly”[2], and “the objective of the directive is to provide for a high level of protection for the environment and contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes … likely to have a significant effect on the environment”[3].  It is sadly vague on the meaning of “framework”; it appears to say it is a term which must reflect the objective of taking into account environmental effects of the framework itself (which I do not think takes us much further) and definitely says that it is unclear how strong the requirements of a plan or project to influence individual projects must be for it to be a framework[4].  The vagueness which one might also call comprehensiveness continues in A-G Kokott’s opinion in Terre Wallone where she says: “To summarise it can be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent … in particular with regard to location, nature, size and operating conditions or by allocating resources.”

So did the Court of Appeal make things any clearer in HS2?  It decided that SEA was not necessary, and the main reason it came to that conclusion was that Parliament is free to disregard DNS.  It stated that to “set” a “framework” there must be some legal influence from the “plan or programme” on the subsequent development consent decision.  As Parliament is sovereign there is no legal influence.  That logic has some strength to it.  But the Court of Appeal also said it would not rule out the possibility that a plan or programme sets the framework where it has a sufficiently potent factual influence, unless the decision maker is Parliament.

So bets are hedged here and we continue to have uncertainty about whether SEA is needed – if there is legal influence it is; but there is still the possibility that factual influence will do.  This leads me to some questions and a plea.  My plea is for some greater certainty over this issue.  The repeal of the Regional Spatial Strategies was subject to voluntary SEA.  The NPPF was not.

And here are my questions.  The Court of Appeal decision hinges on the development consent decision being taken by Parliament. But what would happen if Government decided instead to use the Planning Act 2008 and seek a development consent order from the Secretary of State?  Under the DCO procedure, “important and relevant matters” must be taken into account.  The Government’s view can hardly be less than important and relevant.  Is that not a “legal influence”? Is it sufficient factual influence?

[1]  “Why Central Craigavon was wrongly decided (and other problems with the incorporation of the Strategic Environmental Assessment Directive into domestic law)” by Gregory Jones QC and others [2013] JPL 1074

[2] Inter-Environnement Bruxelles v. Region de Bruxelles-Capitale

[3] Advocate General Kokott in Terre Wallone v. Region Wallone

[4] Advocate General Kokott in Terre Wallone v. Region Wallone

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