Time for a SEA change?

William Orbinson QC discusses the implications of Strategic Environmental Assessment (SEA) for forthcoming local development plans and offers his thoughts on avoiding error or stasis.

What caused the crash in area development planning before the crash in development in the late noughties? A barrage of legal challenges to draft area plans that proposed the drawing-in of development boundaries, at a time when the development industry was bursting with confidence, and not prepared to see hundreds of millions of pounds’ worth of development land evaporating. Mounted by the author, that barrage was grounded on a multi-faceted failure by the centralised planning authority, the Department of the Environment (DOE), to comply with the Strategic Environmental Assessment Directive and transposing regulations. That barrage brought the area plan system to a halt for years. So, as we approach the point where local councils bring out their first plan strategies, with so much riding on them for Northern Ireland’s future growth and prosperity, and with the SEA legislation retained for the foreseeable future by the European Union (Withdrawal) Act 2018, how can error, and stasis, be avoided?

Back in 2007, when the author represented the Magherafelt development consortium in the seminal Seaport/Magherafelt judicial review against the publication of the draft Northern and Magherafelt Area Plans, we were pretty much breaking fresh ground, with virtually nothing to draw on in terms of case law. And yet, we persuaded the High Court that the environmental reports containing the assessment for both draft plans were fundamentally flawed, a finding that survived the appeal process and still stands. Few remember what those flaws were, so, to recap:

• the non-technical summaries did not summarise the substantive content of the reports;
• there were serious breaches in what the Directive said the reports must contain;
• the reports were not published with the draft plans, so they and consultation on them could not influence the draft plans; and
• the consultation body for the draft Northern Area Plan report (DOE Environment and Heritage Service) had been involved in generating the draft plan, so had no independent consultative role.

In the 10 years since, there has been a slew of SEA cases, and a coherent set of principles has emerged, which councils need to apply in producing their development plan documents. A key battleground will be the requirements on the assessment of reasonable alternatives. Why? Because everyone will want their version of the plan to be the plan, and everyone will think that version reasonable and everything else unreasonable. Also, this time round not just development interests will be pressing for their version to prevail: objectors and the green lobby will be ardent in advancing alternatives promoting the environment over development.

So, what principles have the courts laid down on assessing reasonable alternatives?

• the plan-maker must assess all reasonable alternatives to the local development plan’s preferred option, not just a selection, but identifying reasonable alternatives is a matter for the plan-maker, subject to challenge on public law principles;
• identifying reasonable alternatives is a matter of evaluative assessment, but to make a lawful assessment the plan-maker has actually to apply its mind to the question;
• for such an assessment to be lawful, it needs a proper evidential basis, and not be based on guesswork; 
• the best approach to what was a ‘reasonable alternative’ is to identify alternative options that are capable of meeting the objectives of the plan, as determined by the plan-maker – it is alternative ways of meeting those objectives that are the focus of SEA;
• an option which the plan-maker considers viable is also a helpful way to identify a reasonable alternative;
• it is for the plan-maker to identify objectives, give each objective appropriate weight, and determine whether they are met by a given option, subject to challenge on public law principles; an option incapable of meeting the identified objectives need not be subjected to SEA;
• options that are not deliverable are not reasonable alternatives and need not be assessed;
• where a Plan Strategy contains a strategic proposal, alternatives to that proposal must be assessed at the strategic stage, and not left to the Local Policies Plan stage, which will address the outworking of that strategic proposal;
• the plan-maker must give outline – that is, the main – reasons for selecting the alternatives considered, and for declining to consider other possible alternatives, unless they are obvious non-starters, or cannot meet the objectives, or they place development in an area beyond the legal scope of the plan or of the legal competence of the planning authority;
• the plan-maker must give an outline explanation of the reasons for choosing the preferred option and rejecting the alternatives, and must undertake a critical examination of the evidence supporting the reasons for that choice;
• reasons must be provided in the Environmental Report for any narrowing of options, and are especially important where the plan involves an iterative process;
• where options narrow as the plan process progresses, the same level of detail is not required for all stages, but at each stage the preferred option and the alternatives addressed must all be assessed at the same level of detail;
• where no alternatives are considered, an explanation for selecting the ‘one and only’ option must be given;
• the plan-maker must adopt an examination of the reasonable alternatives equal to that applied to the preferred option;
• alternative objectives do not have to be assessed or explained, nor do the reasons why the identified objectives are thought worth achieving;
• precisely what is required in terms of reasonable alternatives depends on the facts of the case;
• a material change in a plan proposal or material change in circumstances since the Environmental Report will require a reassessment of reasonable alternatives;
• where a plan is thematic – for example, a waste plan – alternatives like housing do not need to be considered, provided the thematic plan forms part of a series of documents, one or more of which considers alternatives such as housing, and provided the documents are considered together; and
• the courts will not be impressed by challengers who fail to make representations during the consultation exercise on why the alternatives assessed are not the reasonable alternatives, potentially compromising a later challenge.

Bear in mind that not only will failure to comply with SEA requirements ground a judicial review, it will also render the plan document ‘unsound’, resulting in the Department for Infrastructure directing the council to withdraw it and sort out the problem. Either way, the result will be delay, vital development held back, huge expense, and very unhappy councillors.

Now, then, is the time for councils to gear up to meet the challenges represented by SEA, to put clear blue water between the hapless approach of the DOE and their approach. That will mean securing the specialist skills needed to do the job – if need be buying in expertise from consultants in the field – and subjecting draft Environmental Reports to expert legal audit at the very outset, when it is not too late to get them put right. The alternative is unthinkable.

William Orbinson QC
Bar Library 91 Chichester Street
Belfast, BT1 3JQ
M: 078 6024 5324
T: 028 9042 6751
E: williamorbinson@planning.demon.co.uk
W: www.williamorbinson.co.uk