No Adastral New Town Ltd v Suffolk Coastal District Council & Ors

An environmental assessment under the Strategic Environmental Assessment Directive is a continuing process. Defects at earlier stages may be cured before adoption, provided that updated assessment material and genuine public consultation enable the decision-maker to reconsider the alternatives on a properly informed basis.

Article 6 of the Habitats Directive does not impose a separate duty to undertake a screening assessment at an early stage. Mitigation may be developed through later planning stages, but the competent authority must have sufficient information at the plan stage to be satisfied that the mitigation is achievable and that the plan will not adversely affect the integrity of the protected site.

No Adastral New Town Ltd, a residents’ action group, challenged the allocation of 2,000 dwellings near the Deben Estuary Special Protection Area in Suffolk Coastal District Council’s Core Strategy. It relied on section 113 of the Planning and Compulsory Purchase Act 2004 and alleged breaches of the Strategic Environmental Assessment Directive and the Habitats Directive.

Patterson J dismissed the claim in the Administrative Court: [2014] EWHC 223 (Admin). She found earlier defects in the strategic environmental assessment process but held that they had been cured before adoption. She also rejected challenges concerning the timing of screening and the certainty of mitigation under the Habitats Directive.

The appeal raised whether the SEA defects could be cured, whether an early screening assessment was mandatory, and whether mitigation had impermissibly been deferred to later planning stages.

1. Appeal dismissed unanimously. Richards LJ held, with whom Underhill and Briggs LJJ agreed, that the earlier defects in the strategic environmental assessment process were capable in principle of being cured before adoption of the Core Strategy.

2. The court followed Cogent Land Llp v Rochford District Council and Bellway Homes Ltd [2012] EWHC 2542 (Admin). Strategic environmental assessment is a process, not a single document. The Directive requires assessment and effective consultation during preparation and before adoption, but it does not make every earlier defect incurable. The November 2011 consultation was genuine. Its materials intelligibly set out the appraisal of 2,000 dwellings across all five options, so that consultees and the Council could properly reconsider Area 4. There was no closed mind or unacceptable paper chase.

3. Article 6 of the Habitats Directive imposed no freestanding requirement to conduct a screening assessment at an early point in plan-making. A screening exercise may be prudent where it is needed to establish whether a plan is likely to have a significant effect, but neither Sweetman v An Bord Pleanala nor the other European authorities required it at the stage asserted. The full appropriate assessment, consulted upon before the plan took effect, established that the allocation would not adversely affect the integrity of the Special Protection Area.

4. Mitigation did not have to be specified to the fullest possible detail at Core Strategy stage. The legally material question was whether the Council had sufficient information to be satisfied that the mitigation could be achieved in practice. Applying R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), mitigation formed part of the project to be assessed. The inspector was entitled to find that the country park, visitor-management measures and related mitigation were deliverable. Further assessment at Area Action Plan and application stages, coupled with a requirement to reduce development if unforeseen unmitigable effects emerged, was a lawful additional safeguard.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal and upheld the Core Strategy allocation.

• Administrative Court Patterson J dismissed the section 113 challenge to the Core Strategy: [2014] EWHC 223 (Admin) .