Straight to the core

The High Court recently dismissed a sustainability appraisal challenge made to Core Strategy housing policies. Gregory Jones QC and Juan Lopez explain why.

A sustainability appraisal challenge made to several Core Strategy housing policies of Rochford District Council has been dismissed by Singh J in Cogent LLP v Rochford District Council [2012] EWHC 2542 (Admin).

The Claimant had challenged the lawfulness of three Core Strategy housing policies on grounds including: (1) the selection of alternatives for potential general locations for housing; (2) the reasons given by the local authority for preferring or rejecting reasonable alternatives as part of the comparative assessment of those alternatives; (3) the lawfulness of a Sustainability Appraisal Addendum produced by the local authority, both in terms of adequacy in curing defects alleged and in the timing of its production at post-Submission stage; and (4) whether a failure of the Examination Inspector appointed by the Secretary of State to re-open Examination hearings gave rise to any failure to comply with the requirements of natural justice.

The local authority was successful in resisting all grounds.

Instrumental to Singh J’s decision were his observations that:

1. The Sustainability Appraisal Addendum had been produced by independent consultants engaged by the local authority who had been aware that an Addendum must not be undertaken as an exercise to justify a predetermined strategy;
2. The Inspector had justifiably concluded that there was no compelling reason to question the integrity of the Addendum work;
3. The Inspector had posed the appropriate question: "Are the broad locations identified for the supply of housing most appropriate when considered against all reasonable alternatives?" and in answering that question, had justifiably considered whether the reasons advanced in the Addendum were evidentially sound.

Singh J rejected outright the Claimant’s key contention that the Sustainability Appraisal Addendum had been an "ex post facto justification" or a "bolt-on consideration of an already chosen preference" to justify a decision which had already been made.

He also examined the language of Regulation 13 of the Environmental Assessment of Plans and Programmes Regulations 2004, insofar as it requires "every draft plan and its accompanying environmental report" (prepared in accordance with the Regulations) to be made available for the purposes of consultation by informing the public "as soon as reasonably practicable" of where the documents may be viewed.

It was held that this does not have the effect that the Sustainability Appraisal Addendum had been incapable in law of curing any earlier defects in the sustainability process. Rather, he held that this requirement meant only that the draft plan, and any accompanying environmental report there happens to be, must be available for public consultation as soon as reasonably practicable, and that this was in essence a timing provision which did not prescribe the content of the report.

Neither did this Regulation have the effect that if the accompanying report were not wholly adequate, it could not be supplemented or improved subsequently but before adoption of the plan, for example by way of the Addendum. 

It was noted that "Strategic Environmental Assessment" is not a single document, and not the same as the Environmental Report. It was instead a process, in the course of which the Directive and the Regulations require production of an "Environmental Report".

It was also noted that although Articles 4 and 8 of the SEA Directive 2001/42/EC require an "environmental assessment" to be carried out and taken into account "during the preparation of the plan", neither Article stipulates when in the process this must occur, other than "before adoption". It was similarly found that while Article 6(2) requires the public to be given an "early and effective opportunity” to express their opinion on the draft plan or programme and the accompanying environmental report, Article 6(2) (and similarly Regulation 8) does not prescribe what is meant by "early", other than to stipulate that it must be before adoption of the plan.

Further to ruling that the identification, comparison and selection of reasonable alternatives by the local authority has been appropriate, timely and properly reasoned, the judgment discusses the scope under the Directive 2001/42/EC and 2004 Regulations, for the permissible remedying of a defective SEA by virtue of post-submission and pre-adoption addendum work, and the key considerations guiding the appropriateness of refining or extending of what may amount to a defective SEA.

This case is also significant in developing the discussion of what in substance is meant by the iterative process of sustainability appraisal.

Gregory Jones QC and Juan Lopez are barristers at Francis Taylor Building. They appeared on behalf of the successful local authority defendant in this case.