Northern Ireland judgment

The Strategic Environmental Assessment Directive requires assessment of the preferred plan and every alternative which the decision-maker rationally considers capable of meeting the plan’s objectives. “Reasonable alternatives” do not include every environmentally preferable or technically possible option. The decision-maker has a substantial evaluative discretion, subject to conventional public law review, but must not artificially restrict the range of alternatives. The effects of the preferred plan and reasonable alternatives must be assessed on a comparable basis, and outline reasons must be given for their selection and for preferring one option. The duty under section 28G of the Wildlife and Countryside Act 1981 is a positive duty to take reasonable steps to further conservation and enhancement. It is not a duty to give SSSIs enhanced weight or to apply a presumption against harm.

The claimant sought judicial review of the Welsh Ministers’ decision to adopt the M4 Corridor Around Newport Plan. The Plan provided for a new motorway south of Newport, crossing the Gwent Levels Sites of Special Scientific Interest.

Three grounds were initially advanced. The claimant alleged failures under the Strategic Environmental Assessment Directive and the Environmental Assessment of Plans and Programmes (Wales) Regulations 2004 to identify, describe and evaluate reasonable alternatives. It also alleged breach of section 28G of the Wildlife and Countryside Act 1981. A carbon-emissions ground was abandoned.

The central issues were whether alternatives not involving a high-quality road across the protected sites were reasonable alternatives, and whether the Minister had taken reasonable steps to conserve and enhance the protected features.

The court granted permission on Grounds 1 and 2 but refused the substantive application. Permission was refused on the abandoned carbon-emissions ground.

1. SEA framework. The Strategic Environmental Assessment Directive is procedural. It improves decision-making by requiring environmental effects to be assessed before adoption; it does not require adoption of the option causing least environmental harm. The decision-maker determines the plan’s objectives and the weight given to them, subject to conventional public law review.
2. Reasonable alternatives. An alternative is reasonable if the decision-maker considers it viable and capable of meeting the plan’s objectives sufficiently to be adopted and implemented. The court must scrutinise the selection of alternatives to ensure that the authority has not evaded the Directive by artificially narrowing the field. Nevertheless, the assessment remains primarily evaluative and the authority has a substantial margin of judgment.
3. Assessment and reasons. All alternatives capable of meeting the objectives must be identified, described and evaluated. The preferred plan and reasonable alternatives must be assessed comparably. The authority must give outline reasons for selecting the alternatives dealt with, including why other options were not treated as reasonable alternatives and why the preferred option was selected.
4. The Welsh Ministers rationally concluded, following extensive non-SEA appraisal, that options not involving a high-quality road across the Gwent Levels would not solve the M4 problems by the design year. The Blue Route was insufficiently developed when the SEA Report was published and was later rationally found incapable of meeting the objectives. The SEA process was therefore lawful.
5. Section 28G duty. The duty is to take reasonable steps, consistent with the proper exercise of the authority’s functions, to further conservation and enhancement. It does not require enhanced weighting of SSSI protection or a presumption against development. The route history, environmental assessments and mitigation measures demonstrated compliance. The conclusion that the biodiversity effects were minor negative in the long term was not irrational.

First-instance judicial review in the High Court (Administrative Court). No prior appellate decision is stated in the judgment.