Save Historic Newmarket Ltd & Ors v Forest Heath District Council & Ors

An environmental report accompanying a development plan must contain, or clearly identify, the information required by the applicable strategic environmental assessment regime. It must explain the reasonable alternatives considered, the reasons for rejecting them, and the environmental consequences of material changes to the proposal. Earlier assessments may be used in an iterative process, but relevant information must be brought together or adequately signposted in the final report. A procedural defect requires substantial prejudice before the plan can be quashed. Where a later technical document was considered at the examination and no additional material could realistically have affected the outcome, prejudice is not established.

The claimants challenged policies in the Forest Heath Core Strategy concerning an urban extension to the north-east of Newmarket. The proposed development comprised approximately 1,200 dwellings and raised concerns about effects on the horse-racing industry.

The claim was brought under section 113 of the Planning and Compulsory Purchase Act 2004. The claimants alleged that the strategic environmental assessment failed to comply with Directive 2001/42/EC and the implementing regulations. They also alleged a procedural defect because certain technical studies were produced after the consultation period but before the examination.

1. The claim succeeded on the environmental assessment ground. The final sustainability appraisal and strategic environmental assessment accompanying the proposed Core Strategy did not enable consultees to understand the reasonable alternatives to the proposed urban extension, the reasons for rejecting them, or why the increase from 500 to 1,000 and then 1,200 dwellings made no material difference. The claimants were therefore entitled to relief under section 113 of the Planning and Compulsory Purchase Act 2004 (paras [40], [44]).
2. The environmental report had to provide an accurate account of the reasonable alternatives and explain why the selected option was preferred. An iterative assessment process is permissible. Alternatives may be rejected at an earlier stage and need not be reconsidered where circumstances have not materially changed. That qualification did not apply where the proposal had materially increased in scale or otherwise changed.
3. Earlier environmental assessments could be relied upon, but the final report had to bring together the relevant information, or sufficiently identify and summarise it. Consultees could not be expected to search through earlier reports to discover the environmental effects or the reasons for rejecting alternatives (paras [15]–[17], [40]).
4. The principle recognised in Berkeley v SSE [2001] 2 AC 603, that breach of the environmental assessment requirements renders the relevant decision unlawful irrespective of whether the omission could have affected the outcome, applied equally to strategic environmental assessment of planning policies (para [7]).
5. The procedural ground failed. Even assuming that the Transport Impacts Study should have been obtained earlier, the claimants had dealt with it at the examination. A possibility that other persons might have wished to participate was insufficient. Prejudice would require evidence that an absent participant could have advanced additional material, unknown to the claimants, which might have affected the result. No such evidence existed (paras [41]–[43]). The court rejected the claimants’ second ground and reserved the consequential order for further argument (para [44]).