Friends of the Earth Ltd v Secretary of State for Housing, Communities And Local Government

A national planning policy document requires strategic environmental assessment only if it satisfies both the definition of a plan or programme and the applicable scope provisions in Directive 2001/42/EC. References in planning legislation requiring decision-makers to have regard to national policy do not, without more, regulate or require the policy’s preparation or adoption. A policy document may nevertheless set the framework for future development consent where it contains a significant body of criteria and detailed rules affecting the location, scale or design of development. The revised National Planning Policy Framework satisfied that second requirement, but not the first. The challenge therefore failed.

Friends of the Earth challenged the Secretary of State’s decision to publish the revised National Planning Policy Framework in July 2018 without first undertaking strategic environmental assessment under Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004.

The claimant argued that the Framework was required by the statutory planning scheme and set the framework for future development consent. The Secretary of State disputed both propositions. The court considered the meaning of those requirements, the role of national planning policy in domestic planning law, and the relevant CJEU and UK authorities.

1. Claim dismissed. The Framework was not a plan or programme within the meaning of Directive 2001/42/EC, although the claim was sufficiently arguable to proceed as a rolled-up hearing.
2. Articles 2(a) and 3(2)(a) had to be read together and in the context of the Directive’s wide scope and broad purpose. Nevertheless, each statutory ingredient had to be satisfied. The Directive did not cover every measure capable of producing significant environmental effects.
3. The Framework was not a measure “required by legislative, regulatory or administrative provisions”. The statutory references to national policies in sections 19(2), 20(5) and 39 of the Planning and Compulsory Purchase Act 2004, and in the Town and Country Planning Act 1990, assumed that national policy might exist but did not mandate or regulate its production. An express or implied power to issue national policy did not become a duty or regulatory requirement merely because the policy was important to the planning system.
4. The Framework did, however, set the framework for future development consent. Its policies concerning the Green Belt, flood-risk sequential and exception tests, protected landscapes, irreplaceable habitats and heritage assets constituted a significant body of criteria and detailed rules capable of affecting the location, scale and design of development. Its status as a non-binding material consideration did not reduce its influence to mere persuasion.
5. The practical difficulty of undertaking strategic environmental assessment was not determinative. The requirements of Article 5 and Annex I could, if applicable, be addressed at the appropriate level of detail.

First-instance judicial review claim. No prior decision was stated in the judgment.