Cogent Land Llp v Rochford District Council & Anor

Strategic environmental assessment is a process, not a single document. An environmental report must identify, describe and evaluate reasonable alternatives and explain their selection, with a comparable assessment capable of informing public participation.

However, the legislation does not impose an absolute requirement that the assessment and draft plan be published simultaneously. A later supplementary report may cure earlier deficiencies if it is produced before adoption, is adequate in substance, is subject to consultation, and is properly taken into account. Whether the process complies with the statutory and European requirements depends on the facts of the individual case.

The claimant sought under section 113 of the Planning and Compulsory Purchase Act 2004 to quash housing policies H1, H2 and H3 in the adopted Rochford Core Strategy. The policies preferred housing development at West Rochford and did not allocate development at East Rochford, where the claimant owned land.

The challenge alleged defects in the selection and comparative assessment of alternatives, inadequacy of a July 2011 Sustainability Appraisal Addendum, incapacity of that Addendum to cure earlier defects, and procedural unfairness because the inspector did not reopen the examination hearings. The central issues were whether the Addendum was legally capable of curing earlier deficiencies, whether it was adequate, and whether the inspector’s procedure complied with natural justice.

1. Application refused. The claimant failed to establish any legal error in the adoption of the Rochford Core Strategy.
2. The authority adequately explained, in outline, the environmental reasons for selecting the general locations subjected to further assessment. The challenge on that ground was therefore rejected.
3. The 2008 assessment did not adequately explain the reasons for preferring the selected alternatives or assess them comparably with the reasonable alternatives. That conclusion did not determine the application because the later Addendum had to be considered.
4. Under the Environmental Assessment of Plans and Programmes Regulations 2004, read compatibly with Directive 2001/42/EC, “Strategic Environmental Assessment” is a process comprising preparation of the environmental report, consultation, consideration of the report and consultation responses, and provision of information on the decision. It is not a single document.
5. Regulation 13 is principally a timing provision. It requires the draft plan and accompanying environmental report to be made available for consultation as soon as reasonably practicable, but does not make a later supplementary report incapable in law of curing earlier deficiencies. The assessment must be completed and taken into account before adoption, and the question whether the process was sufficiently early and effective is fact-sensitive.
6. The July 2011 Addendum adequately summarised the alternatives, gave reasons for selecting and rejecting them, used the same appraisal framework, and compared the locations at the strategic level appropriate to a core strategy. The inspector had considered the representations and found no compelling reason to question the Addendum’s integrity or the conclusion that the chosen locations were the most sustainable.
7. The planning assessment of a broad geographical location was conceptually distinct from the detailed assessment of a particular development site. The latter did not require the former to be preferred. The claimant had also had an opportunity to draw relevant material to the inspector’s attention.
8. There was no breach of natural justice or section 20(6) of the Planning and Compulsory Purchase Act 2004. The inspector was entitled to decide that further oral hearings were unnecessary after written consultation and consideration of the material submitted.