Berks, Bucks And Oxon Wildlife Trust, R (On the Application Of) V Secretary of State for Transport

A decision selecting preferred corridors for a major road project is not necessarily a “plan” requiring strategic environmental assessment. The court must examine its legal and practical effect. A decision is unlikely to set the framework for future development consent where it does not establish the criteria governing consent, constrain later decision-making, or exclude reasonable alternatives. An ad hoc project-development step may therefore fall outside the Environmental Assessment of Plans and Programmes Regulations 2004, even where it materially focuses future work. Article 6(3) of the Habitats Directive is likewise not engaged unless a plan or project exists and is likely to have a significant effect on a protected site. The threshold for likelihood is low, but it does not remove the requirement for an identifiable plan or project.

The claimant sought judicial review of the Secretary of State’s decision accepting Highways England’s recommendation of preferred corridors for the proposed Oxford to Cambridge Expressway. The claimant alleged failures to undertake a strategic environmental assessment under the Environmental Assessment of Plans and Programmes Regulations 2004 and an appropriate assessment under the Conservation of Habitats and Species Regulations 2017.

The Secretary of State contended that corridor selection was an early, non-binding stage in project development. Detailed environmental assessment would occur during the later development-consent process. The central issues were whether the decision was a plan, whether it set the framework for future development consent, and whether it was likely to affect European sites.

1. Claim dismissed. The ministerial decision and accompanying documents did not fall within the scope of the SEA Directive or the Environmental Assessment of Plans and Programmes Regulations 2004.
2. The SEA Directive required a purposive interpretation, with limitations on its scope construed strictly. However, the decision was an ad hoc step in preparing a project. It identified two mutually exclusive preferred corridor areas for further work but did not require the road to be built within either corridor, exclude alternatives, or constrain later route selection or development-consent decisions.
3. The decision was therefore not a “plan”. It was not required or regulated by legislative, regulatory or administrative provisions. The Project Control Framework did not specify preferred-corridor selection or prescribe a formal procedure for making that decision.
4. In any event, the decision did not set the framework for future development consent. It did not establish the criteria by which consent would be determined and did not exert such a potent influence that later decision-makers would be prevented from considering less environmentally damaging alternatives. The Secretary of State retained complete discretion over route selection and whether development consent should be granted.
5. Regulation 5(3) was not satisfied because no determination had been made that the decision required assessment under Articles 6 or 7 of the Habitats Directive.
6. Article 6(3) of the Habitats Directive was not engaged. Although “likely” signifies a probability or risk of significant effects and is a low threshold, the provision presupposes the existence of a plan or project. The corridor decision was neither. It would not itself result in works or environmental intervention and was distinguishable from a statutory development plan exerting considerable influence on later development decisions.