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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Friends of the Earth Ltd v Secretary of State for Housing, Communities And Local Government  EWHC 518 (Admin) (06 March 2019)
Cite as:  Env LR 26,  EWHC 518 (Admin),  WLR(D) 131
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Friends of the Earth Limited
|- and -
|Secretary of State for Housing, Communities and Local Government
Rupert Warren QC and Heather Sargent (instructed by Government Legal Department) for the Defendant
Hearing dates: 18th-19th December 2018
Crown Copyright ©
Mr Justice Dove:
"In part, people have been put off from getting involved because planning policy itself has become so elaborate and forbidding – the preserve of specialists rather than people in communities.
This National Planning Policy Framework changes that. By replacing over one thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning."
The Directive and related case law
"(2) The Fifth Environment Action Programme: Towards sustainability — A European Community programme of policy and action in relation to the environment and sustainable development (5), supplemented by Council Decision No 2179/98/EC (6) on its review, affirms the importance of assessing the likely environmental effects of plans and programmes.
(4) Environmental assessment is an important tool for integrating
environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the Member States, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption.
(5) The adoption of environmental assessment procedures at the planning and programming level should benefit undertakings by providing a more consistent framework in which to operate by the inclusion of the relevant environmental information into decision making. The inclusion of a wider set of factors in decision making should contribute to more sustainable and effective solutions.
(6) The different environmental assessment systems operating within Member States should contain a set of common procedural requirements necessary to contribute to a high level of protection of the environment.
(15) In order to contribute to more transparent decision making and with the aim of ensuring that the information supplied for the assessment is comprehensive and reliable, it is necessary to provide that authorities with relevant environmental responsibilities and the public are to be consulted during the assessment of plans and programmes, and that appropriate time frames are set, allowing sufficient time for consultations, including the expression of opinion."
The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
For the purposes of this Directive:
(a) 'plans and programmes' shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:
— which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and
— which are required by legislative, regulatory or administrative
2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes,
(a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to Directive 85/337/EEC"
1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.
2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.
Information referred to in Article 5(1)
The information to be provided under Article 5(1), subject to Article 5(2) and (3), is the following:
(a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes;
(b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme;
(c) the environmental characteristics of areas likely to be significantly affected;
(d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC and 92/43/EEC;
(e) the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation;
(f) the likely significant effects (1) on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors;
(g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme;
(h) an outline of the reasons for selecting the alternatives deal with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information
(1) These effects should include secondary, cumulative, synergistic, short, medium and long-term permanent and temporary, positive and negative effects."
"b) The objectives of the SEA Directive
29. The inclusion of legislative measures also corresponds to the aims of the SEA Directive. According to Article 1, the objective of the SEA Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.
30. The interpretation of the pair of terms 'plans' and 'projects' should consequently ensure that measures likely to have significant effects on the environment undergo an environmental assessment. It is therefore advisable, as with the EIA Directive, to focus primarily on whether the measures in question may have significant effects on the environment. Legislation may have such effects, especially if it permits damage to be done to the environment.
31. The specific objective pursued by the assessment of plans and programmes is evident from the legislative background: the SEA Directive complements the EIA Directive, which is more than ten years older and concerns the consideration of effects on the environment when development consent is granted for projects.
32. The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures. Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context.
33. An abstract routing plan, for example, may stipulate that a road is to be built in a certain corridor. The question whether alternatives outside that corridor would have less impact on the environment is therefore possibly not assessed when development consent is subsequently granted for a specific road-construction project. For this reason, it should be considered, even as the corridor is being specified, what effects the restriction of the route will have on the environment and whether alternatives should be included.
34. Various kinds of requirements concerning the approval of projects may have a significant effect on the environment. Area-related plans may specify with varying degrees of accuracy where the implementation of certain projects is permissible. But measures which stipulate how projects are to be implemented may similarly have significant effects on the environment. Thus a (fictitious) set of rules permitting the discharge of untreated manure from intensive livestock installations directly into natural waters would have significant effects on the environment.
35. Significant effects on the environment can therefore be taken fully into account only if they are assessed in the case of all preparatory measures which may result in projects subsequently implemented having such effects. Accordingly, the interpretation of the terms 'plan' and 'programme' must be broad enough to include legislation."
"81. In the context of such consideration, the framework set by the action programme has at least the effect that it must be possible for the installation to be operated in accordance with the provisions of the programme. At the same time, however, development consent can hardly be refused on grounds of the pollution of waters by nitrate from agriculture if the project complies with the rules of the programme. Certain alternatives, which are harmful to the environment as gauged by the objectives of the action programme, are thus excluded and others, which possibly afford water greater protection, do not have to be examined and taken into consideration. In practice, this not only concerns the operating conditions, but may also have implications for the location. Intensive livestock installations should receive consent only in locations where sufficient land is available for the application of manure.
82. The framework-setting effect of the action programmes in the case of certain intensive livestock installations is even reinforced by another directive, the IPPC Directive. This directive concerns the same types of installation as point 17 of Annex I to the EIA Directive but, as the threshold values are somewhat lower (see point 6.6 of Annex I to the IPPC Directive), more installations are covered. Pursuant to Article 9(1) and Article 3(a) and (b) of the IPPC Directive, the development consent of such installations must ensure that they are so operated that all the appropriate preventive measures are taken against pollution and no significant pollution is caused. The application of the manure arising is attributable to the operation of those installations. Consequently, the action programme must not only be taken into account in this context: compliance with it is mandatory.
83. Action programmes thus set a framework for the development consent of intensive livestock installations as referred to in point 6.6 of Annex I to the IPPC Directive, which fall under either point 17 of Annex I or point 1(e) of Annex II to the EIA Directive."
This conclusion was reached against the Advocate-General's earlier summation of the effect of the requirements that a panel programme set a Framework which she expressed in the following terms:
"67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources."
"AG14 In order to answer the second question, it must be clarified whether the SEA Directive covers plans or programmes which are provided for in legislative provisions but the adoption of which is not compulsory, or whether that directive applies only where there is a legal obligation to draw up a plan.
AG15 Almost all the language versions of the second indent of art.2(a) of the SEA Directive refer to plans or programmes which must be prepared or are required. Plans or programmes which are governed by law but which do not have to be adopted would not be covered. As the United Kingdom rightly points out, that was the basis of the Court's judgment in Terre Wallonne ASBL v Region Wallonne (C-105/09 & C-110/09)  ECR I-5611;  Env. L.R. D83
AG16 Only the Italian version is open to a different interpretation. That version refers to plans and programmes which are "provided for" ("previsti") by law. This might also include measures which are governed by law but which do not necessarily have to be adopted.
AG17 The different language versions of a Community text must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must in principle be interpreted by reference to the general scheme and purpose of the rules of which it is part. However, a provision of which the language versions differ is also to be interpreted on the basis of the real intention of its author. It is apparent from the drafting history of the second indent of art.2(a) of the SEA Directive that, on the basis of the real intention of the legislature, the Italian version too is meant to include only plans and programmes that have to be prepared.
AG18 Neither the original Commission proposal nor an amended version of it included the condition that the plans and programmes covered must be required by law. After the proposal proved unsuccessful in this regard, the Commission, supported by Belgium and Denmark, proposed that the directive should at least apply to plans and programmes "which are provided for in legislation or based on regulatory or administrative provisions". The legislature did not take up those proposals either, however.
AG19 Instead, the Council explained the rules that were eventually adopted, to which the Parliament did not object, in a common position which stated, including in the Italian version, that only plans and programmes that are required ("prescritti")9 are covered. Consequently, the Italian version of the directive must also be construed as meaning that it covers only plans or projects which are based on a legal obligation.
AG20 In the light of the wording of the second indent of art.2(a) of the SEA Directive and its drafting history, neither the general objective of European environmental policy, that is to say a high level of protection (art.3(3) TEU, art.37 of the Charter of Fundamental Rights of the European Union and art.191(2) TFEU), nor the specific objective pursued by the SEA Directive, that is to say the environmental assessment of plans and programmes which are likely to have a significant effect on the environment (art.1), leads to any other interpretation. It is true that plans and programmes which are not based on a legal obligation may also have significant effects on the environment. Indeed, their effects may be even more significant than those of compulsory plans. Nonetheless, the legislature clearly did not intend such measures to require an environmental assessment.
AG26 The Cour constitutionnelle appears to assume that, in order for the SEA Directive to be applicable, an obligation under the second indent of art.2(a) of the SEA Directive must arise every time the plan or programme in question is drawn up. On that basis, plans or programmes the preparation of which is sometimes voluntary but sometimes compulsory never have to undergo an environmental assessment.
AG27 In  ECR I-5611, however, the Court has already held that the SEA Directive also covers programmes which have to be prepared only under certain conditions, in casu action programmes under the Nitrates Directive. They have to be prepared only in the event of the existence of vulnerable zones within the meaning of that directive. If the authorities of the Member States voluntarily adopt action programmes for other areas in accordance with the criteria laid down in the Nitrates Directive, the SEA Directive would not be applicable.
AG28 For the purposes of applying the SEA Directive, it must therefore be examined on a case-by-case basis whether the preparation of a plan or programme is compulsory or voluntary.
AG29 In the absence of provisions of EU law, the question whether in the present case the adoption of the relevant measures is compulsory is a matter of domestic law on which the Cour constitutionnelle alone can give a binding decision. That said, it is clear from art.40 of the CoBAT, for example, that the Government can set a time limit for the adoption of specific land use plans by the municipal authority. In such cases, a legal obligation to adopt the plan could exist. No such obligation appears to exist, on the other hand, where members of the public apply for the adoption of a plan. However, that provision too could be construed as meaning that, while the municipality has some discretion with respect to the time limit for adopting the plan, it must in principle draw up such a plan. Moreover, it is not inconceivable that the circumstances of the case may severely limit that margin of discretion.
AG30 In short, the word "required" in art.2(a) of the SEA Directive must be construed as meaning that that definition does not include plans and programmes which are provided for by legislative provisions but the drawing up of which is not compulsory. Plans or programmes which may under certain conditions be prepared voluntarily are covered by that definition only in cases where there is an obligation to draw them up."
"28 It must be stated that an interpretation which would result in excluding from the scope of Directive 2001/42 all plans and programmes, inter alia those concerning the development of land, whose adoption is, in the various national legal systems, regulated by rules of law, solely because their adoption is not compulsory in all circumstances, cannot be upheld.
29 The interpretation of art.2(a) of Directive 2001/42 that is relied upon by the abovementioned governments would have the consequence of restricting considerably the scope of the scrutiny, established by the directive, of the environmental effects of plans and programmes concerning town and country
planning of the Member States.
30 Consequently, such an interpretation of art.2(a) of Directive 2001/42, by appreciably restricting the directive's scope, would compromise, in part, the practical effect of the directive, having regard to its objective, which consists in providing for a high level of protection of the environment (see, to this effect, Valčiukienė v Pakruojo rajono savivaldybe (C-295/10)  Env LR 11 at ). That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures.
31 It follows that plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as "required"
within the meaning, and for the application, of Directive 2001/42 and, accordingly, be subject to an assessment of their environmental effects in the circumstances which it lays down.
32 It follows from the foregoing that the answer to the second question is that the concept of plans and programmes "which are required by legislative, regulatory or administrative provisions", appearing in art.2(a) of Directive 2001/42, must be interpreted as also concerning specific land development plans, such as the one covered by the national legislation at issue in the main proceedings."
"92. By its seventh question, the referring court seeks, in essence, to ascertain whether a project for the partial diversion of the waters of a river, such as that at issue in the main proceedings, must be regarded as a plan or programme falling within the scope of Directive 2001/42.
93. In that regard, it must be observed that, in order to establish whether a project falls within the scope of Directive 2001/42, it is necessary to consider whether that project is a plan or a programme within the meaning of art.2(a) of that Directive.
94. Under the second indent of art.2(a) of Directive 2001/42, only plans and programmes required by legislative, regulatory or administrative provisions are to be regarded as "plans and programmes" within the meaning of that Directive.
95. It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, Inter-Environment Bruxelles and Others (C-567/10)  ECRI-0000, ).
96. Consequently, the answer to the seventh question is that a project for the partial diversion of the waters of a river, such as that at issue in the main proceedings, is not to be regarded as a plan or programme falling within the scope of Directive 2001/42."
"32. The fact that, in the judgment in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, the Court, relying on a finding concerning the objectives of the SEA Directive in the judgment in Inter-Environnement Bruxelles and Others, has since defined the meaning to be ascribed to the expression plan or programme has so far been overlooked. According to that finding, a plan or programme is a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny ('the Court's definition').
33. Furthermore, the Court has held that, given the (general) objective of the SEA Directive, which consists in providing for a high level of protection of the environment, the provisions which delimit the directive's scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly.
34. Where there is any doubt, the distinction between the two terms in question and other measures should therefore be drawn by reference to the specific objective laid down in Article 1 of the SEA Directive to the effect that plans and programmes which are likely to have significant effects on the environment are subject to an environmental assessment.
35. In accordance with the Court's definition, the contested order lays down criteria and detailed rules for the development of wind power installations and subjects the implementation of an unspecified number of wind power projects to rules and procedures for scrutiny. That its provisions may have significant environmental effects is obvious. For that reason alone, it would seem highly advisable for that order to be subject to an environmental assessment including public participation. In particular, on a broad interpretation of the conditions for the application of the SEA Directive, the foregoing factors indicate that the contested order is to be regarded as a plan or programme."
"38. First, it must be noted that it is apparent from recital 4 of Directive 2001/42 that environmental evaluation is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes.
39. Next, and as was stated by the Advocate General in point 34 of her Opinion, the delimitation of the definition of 'plans and programmes' in relation to other measures not coming within the material scope of Directive 2001/42 must be made with regard to the specific objective laid down in Article 1 of that directive, namely to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment (see, to that effect, judgment of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne, C41/11, EU:C:2012:103, paragraph 40 and the case-law cited).
40. Consequently, given the objective of Directive 2001/42, which is to provide for a high level of protection of the environment, the provisions which delimit the directive's scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly (see, to that effect, judgments of 22 March 2012, Inter-Environnement Bruxelles and Others, C567/10, EU:C:2012:159, paragraph 37, and of 10 September 2015, Dimos Kropias Attikis, C473/14, EU:C:2015:582, paragraph 50).
41. As regards Article 2(a) of Directive 2001/42, the definition of 'plans and programmes' laid down in that provision sets out the cumulative condition that they are, first, subject to preparation and/or adoption by an authority at national, regional or local level or are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and, secondly, required by legislative, regulatory or administrative provisions.
42. It follows from the findings of the referring court that the order of 13 February 2014 was prepared and adopted by a regional authority, in this case the Walloon Government, and that that order is required by the provisions of the Decree of 11 March 1999.
45. As for the term 'plans and programmes', whilst it is true that it must cover a specific area, the fact nonetheless remains that it is not apparent from the wording of either Article 2(a) of Directive 2001/42 or Article 3(2)(a) of that directive that those plans or programmes must concern planning for a given area. It follows from the wording of those provisions that they cover, in the wider sense, regional and district planning in general.
46. According to the findings of the referring court, the order of 13 February 2014 concerns the entire Walloon Region and the limit values that it lays down in respect of noise are closely connected with that region, since those limits are determined in relation to the various uses of the geographical areas in question.
47. As regards the argument that the order of 13 February 2014 does not set out a sufficiently complete framework concerning the wind power sector, it should be recalled that the assessment of the criteria laid down in Articles 2(a) and 3(2)(a) of Directive 2001/42 for determining whether an order, such as that at issue in the main proceedings, may come within that definition must in particular be carried out in the light of the objective of that directive, which, as is apparent from paragraph 39 of the present judgment, is to make decisions likely to have significant environmental effects subject to an environmental assessment.
48. Furthermore, as the Advocate General stated in point 55 of her Opinion, it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in Directive 2001/42 by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgment of 22 March 2012, Inter-Environnement Bruxelles and Others, C?567/10, EU:C:2012:159, paragraph 30 and the case-law cited).
49. Having regard to that objective, it should be noted that the notion of 'plans and programmes' relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (see, to that effect, judgment of 11 September 2012, Nomarchiaki Aftodioikisi Aitoloakarnanias and Others, C43/10, EU:C:2012:560, paragraph 95 and the case-law cited).
50. In the present case, it should be noted that the order of 13 February 2014 concerns, in particular, technical standards, operating conditions (particularly shadow flicker), the prevention of accidents and fires (inter alia, the stopping of the wind turbine), noise level standards, restoration and financial collateral for wind turbines. Such standards have a sufficiently significant importance and scope in the determination of the conditions applicable to the sector concerned and the choices, in particular related to the environment, available under those standards must determine the conditions under which actual projects for the installation and operation of wind turbine sites may be authorised in the future."
"19. The starting point for the answer to this question is that the environmental assessment, as indicated in recital 4 of the SEA Directive, is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes. In addition, the distinction between the two terms 'plans and programmes' and other measures not falling within the material scope of the directive must be drawn by reference to the specific objective laid down in Article 1 to the effect that plans and programmes which are likely to have significant effects on the environment are subject to an environmental assessment. Therefore, the Court has held that, given the objective of that directive, which consists in providing for a high level of protection of the environment, the provisions which delimit its scope, in particular those setting out the definitions of the measures envisaged by the directive, must be interpreted broadly.
20. The case-law to date has essentially concerned plans and programmes for which an environmental assessment under Article 3(2)(a) of the SEA Directive applied. In accordance with that provision, an environmental assessment is to be carried out for all plans and programmes which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects covered by the EIA Directive. Moreover, a framework for development consent of projects which are not covered by the EIA Directive may require an environmental assessment under Article 3(4) of the SEA Directive.
21. The establishment of a framework for subsequent decisions is characteristic of measures which form part of a regulatory hierarchy. In that regard, the provisions are specified in increasingly greater detail in the run-up to the final decision on the individual case, for example a development consent. At the same time, however, any margins for manoeuvre in the decision on the individual case are, generally, already limited by higher-ranking measures; in the case of development consent, for example, rules on the possible development or use of certain areas. In this hierarchical model, the SEA Directive is intended to ensure that specifications which are likely to have significant effects on the environment are made only after those effects have been assessed.
22. Against that background, the Court's ruling in D'Oultremont must be considered. In accordance with that judgment, the two terms 'plans and programmes' 'relate …to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment'.
23. On the one hand, in a regulatory hierarchy, that interpretation of the two terms 'plans and programmes' in the judgment in D'Oultremont is intended to ensure that provisions which have significant effects on the environment are subject to an environmental assessment. On the other hand, for the purposes of a de minimis rule, it is also intended to prevent an environmental assessment being mandatory for individual criteria or rules which are determined in isolation.
24. Denmark therefore emphasises that a significant body of criteria and detailed rules implies a number of specifications and these specifications must also carry a certain weight.
25. However, I do not find a quantitative approach, which focuses on the number of specifications, convincing. For, the Court has also held that it is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive.
26. Consequently, the clarification of the criterion of a 'significant body' should be aligned qualitatively to the specific objective laid down in Article 1 of the SEA Directive, inter alia, to subject plans and programmes which are likely to have significant effects on the environment to an environmental assessment.
27. The establishment of criteria and rules for the development consent and implementation of projects which are likely to have significant effects on the environment must therefore be regarded as a significant body and thus as a plan or programme if those environmental impacts of the projects derive precisely from the criteria and rules in question. However, if the criteria and detailed rules established cannot have significant effects on the environment, a significant body does not exist and, therefore, nor does a plan or programme.
28. When assessing whether a plan or a programme within the meaning of Article 2(a) of the SEA Directive exists, it is therefore necessary to ascertain whether the specifications in the measure in question are likely to have significant effects on the environment."
"41. However, I would note that the case-law of the Court may have in fact extended the scope of the SEA Directive further, as was intended by the legislature and the Member States were able to foresee. In my view, however, this does not follow from the definition of the two terms 'plans and programmes', but from the interpretation of the characteristic set out in Article 2(a), second indent, in accordance with which those plans and programmes must be required by legislative, regulatory or administrative provisions.
42. As has already been said, the fact that a measure is regulated by national legislative or regulatory provisions which determine the competent authorities for adopting them and the procedure for preparing them should be sufficient. Therefore, a rather rare requirement to adopt the measure in question is not necessary; rather, it suffices if it is made available as a tool. This extends the obligation to carry out an environmental assessment significantly. As I have already stated, this interpretation that is based on the legitimate objective of applying an environmental assessment covering all relevant measures, is contrary to the recognisable intention of the legislature. The Supreme Court of the United Kingdom has therefore strongly criticised this, without, however, making a request for a preliminary ruling to that effect to the Court.
43. This case-law is not called into question by the present request for a preliminary ruling or by the parties to the proceedings. Therefore, the Court should not address it and examine it on its own initiative; rather it should reserve this for a more appropriate case."
"46. Concerning the second of those conditions, in order to establish whether regional town planning regulations, such as those at issue in the main proceedings, set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive, it is necessary to examine the content and purpose of those regulations, taking into account the scope of the environmental assessment of projects as provided for by that directive (see, to that effect, judgment of 17 June 2010, Terre wallonne and Inter-Environnement Wallonie,C-105/09 and C-110/09, EU:C:2010:355, paragraph 45).
47. Concerning, in the first place, the projects listed in Annexes I and II to the EIA Directive, it should be borne in mind that infrastructure projects are listed under Title 10 of that second annex, including, under point (b) of that title, urban development projects.
48. It should be noted that the contested decree contains rules applicable to all buildings, whatever their nature, and to all their surroundings, including 'areas of open space' and 'areas on which building is permissible', whether public or private.
49. In that regard, that measure contains a map which not only sets out the area to which it applies, but also defines various islands to which different rules apply as regards the location and height of buildings.
50. More specifically, that measure contains provisions concerning, inter alia: the number, location, height and surface area of buildings; construction-free spaces, including flower beds and vegetable patches in those spaces; rainwater collection, including the construction of stormwater collection tanks and storage tanks; the designing of buildings in line with their potential use, how long they will be used for and their eventual dismantling; the biotope coefficient, namely the relationship between areas that can be developed ecologically and total surface area; converting roofs with a view to, inter alia, landscape integration and greening.
51. Regarding the purpose of the contested decree, it pursues an objective of transforming the district into a 'dense, mixed urban' area and is intended to achieve the 'redevelopment of the whole of the European Quarter'. More specifically, that decree contains a chapter entitled 'Provisions relating to the composition of the planning permission and certificate application file' which lays down not only the substantive rules that will have to be applied when permission is granted, but also the procedural rules relating to the composition of applications for urban planning permission and certificates.
52. It follows that a decree such as the one at issue in the main proceedings contributes, by both its content and its purpose, to the implementation of projects listed in that annex.
53. In the second place, regarding the question whether the contested decree sets the framework for future development consent of such projects, the Court has already held that the notion of 'plans and programmes' relates to any measure which establishes, by defining rules and procedures for scrutiny applicable to the sector concerned, a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment (judgment of 27 October 2016, D'Oultremont and Others,C-290/15, EU:C:2016:816, paragraph 49 and the case-law cited).
54. That interpretation of the concept of 'plans and programmes' is intended to ensure, as was noted by the Advocate General in point 23 of her Opinion, that provisions which are likely to have significant effects on the environment are subject to an environmental assessment.
55. Therefore, as was noted by the Advocate General in points 25 and 26 of her Opinion, the concept of 'a significant body of criteria and detailed rules' must be construed qualitatively and not quantitatively. It is necessary to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive (see, to that effect, judgment of 27 October 2016, D'Oultremont and Others,C-290/15, EU:C:2016:816, paragraph 48 and the case-law cited).
56. It is apparent from reading the contested decree that that measure contains, inter alia, provisions concerning the development of areas situated in the areas around buildings and other construction-free spaces, areas on which building is permissible, courtyard and garden areas, fences, hedges and boundary walls, pipes and cables connecting buildings with networks and sewers, collection of rainwater, and various building features, including whether they can be converted and are sustainable, certain external aspects thereof, and vehicle access thereto.
57. Having regard to the way in which they are defined, the criteria and detailed rules established by such a measure may, as was noted by the Advocate General in point 30 of her Opinion, have significant effects on the urban environment.
58. Such criteria and detailed rules are, as has been emphasised by the Commission, likely to have an effect on lighting, wind, the urban landscape, air quality, biodiversity, water management, the sustainability of buildings and, more generally, emissions within the area concerned. More particularly, as is stated in the preamble of the contested decree, the size and layout of high rise buildings are likely to give rise to undesirable effects in terms of shade and wind.
60. Such a finding cannot be called in question by the objection raised by the Belgian Government relating to the general nature of the regulations at issue in the main proceedings. Indeed, besides the fact that it is apparent from the actual wording of the first indent of Article 2(a) of the SEA Directive that the notion of 'plans and programmes' can cover normative acts adopted by law or regulation, that directive does not contain any special provisions in relation to policies or general legislation that would call for them to be distinguished from plans and programmes for the purpose of that directive. Moreover, the fact that RZTPRs, such as those at issue in the main proceedings, contain general rules, express some abstract ideas, and pursue an objective of transforming an area is illustrative of their planning and programming aspect and does not prevent them from being included in the definition of 'plans and programmes' (see, to that effect, judgment of 27 October 2016, D'Oultremont and Others, C-290/15, EU:C:2016:816, paragraphs 52 and 53). 10"
UK Case Law
"59. In the present case, the WPR was subject to an EIA; and there is no longer any complaint that that assessment failed to meet the requirements of the EIA Directive. The question whether there also required to be an SEA depends upon whether the decision to construct the Fastlink as part of the WPR was a modification of a "plan" or "programme" as defined in Article 2(a) of the SEA Directive, and was therefore itself such a plan or programme; and, if so, whether it set the framework for future development consent of a project listed in Article 3(2)(a) (there being no dispute that the WPR is such a project). The reasoning of the Court of Justice and the Advocate General in such recent cases as Terre Wallone ASBL v Région Wallone and Inter-Environnement Wallonie ASBL v Région Wallone ((Joined Cases C-105/09 and C-110/09)  I-ECR 5611, BAILII:  EUECJ C-105/09, and Inter-Environnement Bruxelles ASBL, Pétitions-Patrimoine ASBL and Atelier de Recherche et d'Action Urbaines ASBL v Région de Bruxelles-Capitale (Case C-567/10)  2 CMLR 30 suggests that these questions are to some extent inter-related.
60. In determining whether the Fastlink decision was a modification of a "plan" or "programme" as defined in Article 2(a), the first question is whether, as Mr Walton contends, the MTS (or the local transport strategies which it comprised) was a plan or programme within the meaning of that provision.
61. It might be argued with some force that none of these documents has been shown to have been "required by legislative, regulatory or administrative measures" as stipulated by the second indent of Article 2(a), even according the term "required" the width of meaning given to it in Inter-Environnement Bruxelles at para 31. It might also be argued that NESTRANS, at least, was not an "authority" within the meaning of the first indent, since it was established voluntarily and did not exercise any statutory functions. On the other hand, it might be argued that the documents "set the framework for future development consent of projects", as explained by Advocate General Kokott in her opinion in Terre Wallone at points 64-65, and were therefore likely to have significant effects on the environment. In those circumstances, it might be argued that a purposive interpretation of the directive would bring the documents within its scope.
62. For reasons which I shall explain, it does not appear to me to be necessary to reach a concluded view on these questions. It is sufficient to say that it appears to me to be arguable that the MTS, or the local transport strategies which formed its constituent parts, formed a plan or programme within the meaning of the directive. The question whether the decision to construct the Fastlink constituted a modification to a plan or programme can be considered on the hypothesis that the MTS (or its constituent documents) comprised such a plan or programme."
Lord Reed went on to reject the challenge on the basis that what had occurred was not a modification within the meaning of Article 2(a) of the Directive.
"99 On the first point, like Lord Reed JSC, I am content to proceed on the assumption that the MTS, as approved by NESTRANS in March 2003, was itself such a "plan" or "programme". However, I should register my serious doubts on the point, even accepting the flexible approach required by the European authorities. I note from that the passage from Inter-Environmental Bruxelles ASBL v Region de Bruxelles-Capitale (Case C-567/10)  2 CMLR 909 quoted by Lord Reed JSC, at para 22, refers to regulation of plans and programmes by provisions "which determine the competent authorities for adopting them and the procedure for preparing them". There may be some uncertainty as to what in the definition is meant by "administrative", as opposed to "legislative or regulatory", provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption. Given the relatively informal character of the NESTRANS exercise, it is not clear to me what "administrative provisions" could be relied on as fulfilling that criterion."
"35. It should be borne in mind also that, although the expression "strategic" is commonly used in shorthand descriptions of the Directive, it is not a word that appears in the text. The correct title is "Directive . . . on the assessment of the effects of certain plans and programmes on the environment". It is not therefore to be assumed, as some of Mr David Elvin QCs submissions seemed to imply, that because a project is "strategic" in nature (as HS2 undoubtedly is) the presumption must be in favour of assessment under this Directive. The purpose is more specific, that is to prevent major effects on the environment being predetermined by earlier planning measures before the EIA stage is reached.
36. Against that background, and unaided by more specific authority, I would have regarded the concept embodied in Article 3(2) as reasonably clear. One is looking for something which does not simply define the project, or describe its merits, but which sets the criteria by which it is to be determined by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects. That approach is to my mind strongly supported by the approach of the Advocate General and the court to the facts of the Terre Wallone case  ECR I-5611 and by the formula enunciated in Inter-Environnement Bruxelles ASBL v Region de Bruxelles-Capitale  2 CMLR 909 and adopted by the Grand Chamber in the Nomarchiaki case  Env LR 453.
37. In relation to an ordinary planning proposal, the development plan is an obvious example of such a plan or programme. That is common ground. Even if as in the UK it is not prescriptive, it none the less defines the criteria by which the application is to be determined, and thus sets the framework for the grant of consent. No doubt the application itself will have been accompanied by plans and other supporting material designed to persuade the authority of its merits. In one sense that material might be said to "set the framework" for the authority's consideration, in that the nature of the application limits the scope of the debate. However, no one would for that reason regard the application as a plan or programme falling within the definition.
38. In principle, in my view, the same reasoning should apply to the DNS, albeit on a much larger scale. It is a very elaborate description of the HS2 project, including the thinking behind it and the Government's reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament. As Ouseley J said, at para 96:
"The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here."
39. With respect to Sullivan LJ, I do not think that position is materially changed by what he called the "dual role" of Government. Formally, and in reality, Parliament is autonomous, and not bound by any "criteria" contained in previous Government statements.
40. I have noted that the majority and the minority in the Court of Appeal adopted the same test, turning on the likelihood that the plan or programme would "influence" the decision. The majority referred to the possibility of the plan having a "sufficiently potent factual influence": para 55. Although Mr Mould generally supported the reasoning of the majority, he submitted that "influence" in the ordinary sense was not enough. The influence, he submitted, must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant.
41. In my view he was right to make that qualification. A test based on the potency of the influence could have the paradoxical result that the stronger the case made in favour of a proposal, the greater the need for strategic assessment. Setting a framework implies more than mere influence, a word which is not used by the court in any of the judgments to which we have been referred. It appears in Annex II of the Directive, but only in the different context of one plan "influencing" another. In Terre Wallone  ECR I-5611 Advocate General Kokott spoke of influence, but, as already noted, that was by way of contrast with the submissions before her which suggested the need for the plan to be "determinative"."
"181. The Chamber then simply said that "It must be stated" that "an Interpretation" which would exclude from the scope of the SEA Directive plans and programmes regulated by rules of law in the various national legal systems, "solely because their adoption was not compulsory in all circumstances, cannot be upheld": para 28.
182. The Chamber no doubt used the phrase "in all circumstances" because the position, under the relevant national law, was that "in certain cases" (among them the case before the Chamber) the municipal authority might refuse to prepare a specific land use plan (para 18). Cases in which the authority had no option but to prepare such a plan would on any view obviously fall within the word "required".
183. However that may be, the Chamber concluded that "required" means "regulated", so as to catch even cases where no plan was required to be prepared. The only reasons it gave were that to read "required" as meaning "required" would "have the consequence of restricting considerably the scope of the scrutiny" (para 29) or "compromise, in part, the practical effect of the Directive, having regard to its objective, which consists in providing a high level of protection of the environment" and "thus run counter to the Directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment": para 30.
184. If, instead of "required", one must read the word "regulated", the question arises what it means. Is it sufficient that legislative, regulatory or administrative provisions grant powers to some authority wide enough to permit a plan or programme to be prepared? Or must such provisions actually refer to a possibility that such a plan or programme will be prepared? Or must they specify points and/or conditions that such a plan or programme, if prepared, must address and/or fulfil? The Chamber referred to provisions which "determine the competent authorities for adopting them [i e the relevant plan or programme] and the procedure for preparing them": para 31.
185. If this is what is meant by "regulated", then not all plans and programmes can on any view be covered by the SEA Directive, and the desire for comprehensive regulation of plans and programmes "likely to have significant effects on the environment" cannot be met. In any event, it follows from the fact that the SEA Directive only applies to plans and programmes "which set the framework for future development consent of projects", that it is not exhaustive and does not cover every form of plan and programme simply because it could be said to be likely to have significant environmental effects: see Lord Carnwath and Lord Reed JJSC's judgments. The SEA Directive and its terms must be read as a whole."
They concluded that had the issue been before the Supreme Court without any decision of the CJEU having being available they would have reached the same conclusion as Advocate-General Kokott in IEB 1 for the reasons which she gave.
The position of the Framework and National Policy in the Statutory Regime
"having regards to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order".
Turning to the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") at section 19 of that Act provisions are set out for the preparation of local development documents. In particular section 19 (2) provides as follows:
"(2) In preparing a development plan document or any other local development document the local planning authority must have regard to-
(a) national planning policies and advice contained in guidance issued by the Secretary of State."
"(5) The purpose of an independent examination is to determine in respect of the development plan document-
(a) whether it satisfies the requirements of sections 19 and 24 (1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation."
"140. Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to a central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be secured. National planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems. As is explained in paragraph I of the Government's publication Planning Policy Guidance Notes, the need to take account of economic, environmental, social and other factors requires a framework which provides consistent, predictable, and prompt decision making. At the heart of that system are development plans. The guidance sets out the objectives and policies comprised in the framework within which the local authorities are required to draw up their development plans and in accordance with which their planning decisions should be made. One element which lies behind the framework is the policy of securing what is termed sustainable development, an objective which is essentially a matter of governmental strategy.
141. Once it is recognised that there should be a national planning policy under a central supervision, it is consistent with democratic principle that the responsibility for that work should lie on the shoulders of a minister answerable to Parliament. The while scheme of the planning legislation involves an allocation of various functions respectively between local authorities and the Secretary of State."
"19. The court heard some discussion about the source of the Secretary of State's power to issue national policy guidance of this kind. The agreed Statement of Facts quoted without comment a statement by Laws LJ (R (West Berkshire District Council) v Secretary of State for Communities and Local Government  EWCA Civ 441;  1WLR 3923, para 12) that the Secretary of State's power to formulate and adopt national planning policy is not given by statute, but is "an exercise of the Crown's common law powers conferred by the royal prerogative." In the event, following a query from the court, this explanation was not supported by any of the parties at the hearing. Instead it was suggested that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, paras 140-143 per Lord Clyde). This is reflected both in specific requirements (such as in section 19(2) of the 2004 Act relating to plan-preparation) and more generally in his power to intervene in many aspects of the planning process, including (by way of call-in) the determination of appeals.
20. In my view this is clearly correct. The modern system of town and country planning is the creature of statute (see Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment  AC 132, 140-141). Even if there had been a pre-existing prerogative power relating to the same subject-matter, it would have been superseded (see R (Miller) v Secretary of State for Exiting the European Union (Birnie intervening)  2 WLR 583, para 48). (It may be of interest to note that the great Case of Proclamations (1611) 12 Co Rep 74, which was one of the earliest judicial affirmations of the limits of the prerogative (see Miller para 44) was in one sense a planning case; the court rejected the proposition that "the King by his proclamation may prohibit new buildings in and about London".)"