St Albans City & District Council v Secretary of State for Communities and Local Government

An environmental assessment for a plan may be iterative. Once compliant assessment has identified, described and evaluated broad alternatives and the decision-maker has selected an option, discarded alternatives need not be reassessed at every later stage. Further assessment remains necessary where later policies introduce a distinct location-specific choice which was not previously assessed.

Failure to assess reasonable alternatives required by the Directive and Regulations renders the relevant policies outside the appropriate power. Where a planning decision is ultra vires because of non-compliance with environmental assessment obligations, the discretion to decline to quash it is exceptionally narrow. Substantial compliance is required.

Hertfordshire County Council and the City and District Council of St Albans challenged the Secretary of State’s adoption of a revision to the regional spatial strategy for the East of England. They argued that the environmental reports prepared during the plan-making process had failed to identify, describe and evaluate reasonable alternatives to policies requiring substantial housing growth and green belt reviews around Hemel Hempstead, Welwyn Garden City, Hatfield and Harlow.

The challenge was brought under section 113(2) of the Planning and Compulsory Purchase Act 2004. The central issue was whether the environmental assessment process had adequately addressed the alternatives to the challenged policies, including the proposed expansion of Harlow into green belt land and the proposed growth around the three towns.

1. Harlow. The earlier Levett-Therivel environmental reports had identified, described and evaluated the environmental effects of the relevant spatial scenarios and the alternatives to the selected combination. The decision-making process was iterative. The rejection of a new town and unplanned dispersed development meant that those alternatives did not require further appraisal at later stages. The Secretary of State could therefore adopt the policy directing Harlow’s expansion northwards into the green belt without obtaining a further environmental report.
2. The three towns. The later policies requiring 22,000 additional houses around Hemel Hempstead, Welwyn Garden City and Hatfield, with associated green belt erosion, raised a distinct question. The earlier reports did not assess whether that development should occur in those locations at all. The ERM report did not identify, describe and evaluate reasonable alternatives to those policies as required by Article 5.1 of the Directive and Regulation 12(2) of the Regulations.
3. The requirement for later local green belt reviews did not cure the defect. Those reviews would determine where within the districts the erosion occurred, but not whether the relevant erosion should occur there at all.
4. The affected policies were consequently outside the appropriate power under section 113(2) of the Planning and Compulsory Purchase Act 2004. Following the observations of Lord Hoffmann in Berkeley v Secretary of State for the Environment (2001) 2 AC 603, the discretion not to quash an ultra vires planning decision affected by environmental assessment non-compliance was confined within very narrow limits. The same approach applied to environmental assessment as to environmental impact assessment.
5. The policies concerning the three towns were, in principle, quashed. The precise form of order was to be settled with counsel. The alternative submission concerning deficiencies in the environmental report would have been rejected by analogy with R v (on the application of Blewitt) v Derbyshire County Council [2003] EWHC 2775 (Admin).

First-instance judicial review proceedings. The judgment itself records no earlier appellate decision.