Ashdown Forest Economic Development Llp v (1) Wealden District Council (2) South Downs National Park Authority

The duty to assess reasonable alternatives under the Environmental Assessment of Plans and Programmes Regulations 2004 requires the plan-making authority to apply its mind to whether alternatives exist. The authority’s evaluative judgment attracts ordinary public-law review, but a failure to consider the question at all is unlawful, even where no alternative was suggested. A habitats assessment showing that proposed mitigation would protect a designated site does not, without more, assess or exclude alternative mitigation. Relief remains discretionary and must be effective and proportionate. Where the breach may have affected the choice of policy, the existing policy causes material delay, and quashing leaves site-specific environmental safeguards available, partial quashing may be appropriate.

The appellant challenged the adopted Wealden District Core Strategy under section 113 of the Planning and Compulsory Purchase Act 2004. The challenge concerned policy WCS12, which required mitigation for housing development within 7 kilometres of Ashdown Forest, a protected SPA and SAC.

Sales J dismissed the claim on all grounds: [2014] EWHC 406 (Admin). Permission to appeal was limited to whether the Council had complied with regulation 12 of the Environmental Assessment of Plans and Programmes Regulations 2004 by assessing reasonable alternatives to the 7-kilometre zone. The central issue was whether the Habitats Regulations Assessment adequately discharged that separate SEA obligation.

Richards LJ, with whom McFarlane and Christopher Clarke LJJ agreed, allowed the appeal and granted a quashing order limited to the part of policy WCS12 concerning the 7-kilometre zone.

1. The identification of reasonable alternatives under regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004 is an evaluative assessment for the local planning authority. The court reviews it on ordinary public-law principles, including Wednesbury unreasonableness. The authority must nevertheless apply its mind to whether reasonable alternatives exist.
2. There was no evidence that the Council had considered that question. The absence of suggestions from consultees, the inspector’s endorsement, and the advice of Natural England could not cure that failure. The Council might lawfully have concluded that no reasonable alternatives existed, but it had to consider the question first.
3. The Habitats Regulations Assessment had a different function. It addressed whether the Core Strategy, with proposed mitigation, would adversely affect the integrity of Ashdown Forest. Its conclusion that a 7-kilometre zone would eliminate the risk did not establish that no alternative mitigation was available. The 5-kilometre and 15-kilometre references were parts of an extrapolation exercise, not alternatives assessed against the 7-kilometre proposal.
4. The court expressly left open whether the SEA Regulations require reasons for rejecting alternatives to be explicit rather than implicit. That issue was unnecessary to decide and any observations on it would have been obiter.
5. Relief remained discretionary, subject to effective and proportionate enforcement of EU-derived rights. The evidence showed that alternative or phased mitigation could not be dismissed out of hand, that the existing policy had delayed housing because suitable SANGs were unavailable, and that Natural England’s advice had developed towards a broader mitigation scheme. Partial quashing would not create a protection gap because screening and assessment under regulation 61 of the Conservation of Habitats and Species Regulations 2010 would continue, with site-specific mitigation available where necessary.

1. Court of Appeal (Civil Division): Appeal allowed. The part of policy WCS12 relating to the 7-kilometre zone was quashed: [2015] EWCA Civ 681.
2. High Court of Justice, Administrative Court: Sales J dismissed the challenge on all grounds: [2014] EWHC 406 (Admin).