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Sarah FINALOn 15 and 16 May 2013 the Supreme Court (Lady Hale, Lord Kerr, Lord Wilson, Lord Reed and Lord Carnwath) heard an appeal by Central Craigavon Limited (“the Appellant”) against the decision of the Court of Appeal (Civil Division, Northern Ireland) in the Matter of an Application by Central Craigavon Limited for Judicial Review [2011] NICA 17.

Issue

Whether a draft Planning Policy Statement issued by the Department of Environment was a “plan or programme” to which Article 3(2)(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment applied, so as to require a strategic environmental assessment to be carried out?

Procedural Background

The Appellant applied for judicial review of the decision of the DOE dated 15 January 2008 whereby the DOE adopted “draft Planning Policy Statement 5: Retailing, Town Centres and Commercial Leisure Developments”, a draft policy statement which had previously been formulated by the Department of Regional Development in the exercise of its planning powers. Draft PPS5 contained, inter alia, planning policy relating to applications for development at Sprucefield Regional Shopping Centre. The application for judicial review, and the subsequent appeals, arose in the context of a disputed application for development at Sprucefield. The Appellant is the landlord of Rushmere Shopping Centre in Craigavon and considers that it would be detrimentally affected by major expansion of Sprucefield.

The Appellant’s challenge to the DOE’s adoption of draft PPS5 was based originally on four grounds, which included: (i) in the formulation of draft PPS5 the DOE had failed to comply with the mandatory requirements of EU law or the domestic regulations giving effect to the Directive; and (ii) the DOE had adopted draft PPS5 without the required Executive approval of the policy. At first instance, the Judge upheld the challenge on the latter ground only, but declined to quash the impugned decision adopting the policy. The Appellant appealed to the Court of Appeal, challenging the Judge’s refusal to grant relief.

The Court of Appeal dismissed the appeal. The Appellant’s appeal to the Supreme Court concerns only one issue: whether the DOE had failed to comply with the Directive in adopting draft PPS5.

Decision of the Court of Appeal

Article 3(1) of the Directive requires an environmental assessment to be carried out for “plans and programmes” which are likely to have significant environmental effects. Article 3(2)(a) of the Directive requires an environmental assessment for all plans and programmes ”which set the framework for future development consent” of projects listed in annexes I and II to Directive 85/337/EC.

Article 2 defines “plans and programmes” as:

“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 provisions.”

Effect was given to the Directive domestically by the Environmental Assessment of Plans and Programmes Regulations (NI) 2004 which contain provisions incorporating the requirements of the Directive.

The Court of Appeal (Girvan LJ, with whom Higgins and Coghlin LJJ agreed) concluded that draft PPS5 did not constitute a plan or programme for the purposes of Article 2 of the Directive for the following reasons:

(i)          A draft PPS proposing to alter an earlier PPS is not something which the DOE was obliged to produce (at §§37-38).

(ii)        Draft PPS5 did not constitute a plan or programme providing a framework within Article 3(2)(a) of the Directive. The draft PPS5 merely indicates the material planning considerations to be taken account of in an application for development. This falls short of laying down a framework for development (at §§40, 43-43).

Comment

The NI Court of Appeal’s decision is difficult to reconcile with a subsequent decision of the European Court of Justice. In Inter-Environnement Bruxelles ASBL v. Region de Bruxelles-Capitale [2012] Env LR the ECJ held that an interpretation of Article 2 that required only measures for which there was a legal obligation to prepare or adopt a plan to be subject to the Directive would “have the consequence of restricting considerably the scope of the scrutiny, established by the directive” (at §29). Such an interpretation would compromise the practical effect of the directive, having regard to its objective, which consists of providing for a high level of protection to the environment (at §30). The Court concluded that a plan or programme “whose adoption is regulated by the 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… of [the Directive]” (at §31).

Nevertheless, obiter comments made by the Supreme Court in Walton v. The Scottish Ministers [2012] UKSC 44 suggest a narrower approach to plan or programme. In Walton the Supreme Court determined that the Directive did not apply to a road scheme made under a Scottish Act as it did not itself alter the framework for the future development consent of projects, rather it altered a specific project which continued to require development consent. This decision was reached on the assumption that the scheme was a plan or programme, but Lord Reed expressed some doubt (at §61), as did Lord Carnwath, who stated (at §99):

“99. On the first point, like Lord Reed, I am content to proceed on the assumption that the MTS… 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-Environnement Bruxelles quoted by Lord Reed (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…”

It’s worth also noting the following first instance decisions:

(i)          In R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government (No 1) [2010] EWHC 2866 (Admin) Sales J held that the revocation of a Regional Strategy was the modification of a plan or programme, that is of the development plan, since the Strategy could play a decisive role in determining development consents.

(ii)        In Cala Homes No 2 [2011] EWHC 97 (Admin) Lindblom J held that a letter from the Chief Planner to local authorities on the day of judgment in Cala Homes No 1, saying that the decision to revoke Regional Strategies was a material consideration in planning decisions, did not fall within the Directive. The Government’s stated policy commitment to revoking Regional Strategies was not a modification of a plan or programme.

(iii)       In R (Buckinghamshire County Council) v. Secretary of State for Transport [2013] EWHC 481 (Admin) Ouseley J held that the Command Paper, High Speed Rail: Investing in Britain’s Future—Decisions and Next Steps was not a plan or programme.

The consideration of this issue by the Supreme Court provides an opportunity for it to consider how widely plan or programme in Article 2 of the Directive should be construed.