Introduction

The case Rights: Community: Action v Secretary of State for Housing, Communities and Local Government ([2021] EWCA Civ 1954) tackled a pivotal question regarding the legality of amending planning legislation through statutory instruments without conducting a Strategic Environmental Assessment (SEA) as mandated by Directive 2001/42/EC and the accompanying Environmental Assessment of Plans and Programmes Regulations 2004.

The applicant, Rights: Community: Action, a campaigning organization focused on climate change and environmental issues, sought judicial review of three statutory instruments: S.I. 2020/755, S.I. 2020/756, and S.I. 2020/757. These instruments amended the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) and the Use Classes Order 1987 to expand permitted development rights and alter change of use classifications.

The core issue was whether these statutory instruments constituted "plans or programmes" within the scope of the SEA Directive, thereby requiring an environmental assessment prior to their enactment.

Summary of the Judgment

The Court of Appeal upheld the Divisional Court's decision, ruling that the Secretary of State did not act unlawfully by enacting the statutory instruments without an environmental assessment under the SEA Directive. The court concluded that the statutory instruments in question did not set the "framework for future development consent of projects" as defined by the SEA Directive, and thus were exempt from requiring a strategic environmental assessment.

The judgment delved into the definitions and interpretations of "plans and programmes" under the SEA Directive, analyzing comparable cases to determine whether the statutory instruments in question fell within the directive's scope. The court found that these instruments merely granted specific permitted development rights and did not establish or modify a comprehensive framework for future development consents.

Consequently, the appeal by Rights: Community: Action was dismissed, reaffirming that not all statutory instruments related to development and planning fall within the ambit of the SEA Directive.

Analysis

Precedents Cited

The judgment extensively referenced key cases that shaped the interpretation of what constitutes a "plan or programme" under the SEA Directive:

• Compagnie d'entreprises CFE SA v Région de Bruxelles-Capitale (Case C-43/18) - Emphasized a broad interpretation of "plans and programmes" to include measures establishing a significant body of criteria for development consents.
• Thybaut v Région Wallonne (Case C-160/17) - Highlighted that measures enabling derogations from existing plans set a framework for future consents, thus falling within the SEA Directive.
• Buckinghamshire County Council v Secretary of State for Transport [2014] UKSC 3 - Held that government plans not setting a comprehensive framework for development consents were outside the SEA Directive.
• Walton v Scottish Ministers [2012] UKSC 44 - Similar to Buckinghamshire, reinforced the narrow scope of the SEA Directive.
• Cala Homes (South) Ltd. v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) - Distinguished cases where modifications to existing strategies qualified under the SEA Directive.

Legal Reasoning

The court's legal reasoning focused on the precise language of the SEA Directive, particularly Article 3(4), which defines the scope of plans and programmes requiring an environmental assessment. The statutory instruments in question granted specific permitted development rights under the GPDO and amended the Use Classes Order, but did not establish a broad framework governing future development consents. Instead, they provided conditional permissions or altered definitions without setting detailed criteria or procedures for future consents.

The court distinguished these instruments from those in precedents like Thybaut, where measures explicitly enabled derogations and set comprehensive frameworks for future developments. Here, the statutory instruments simply expanded existing permitted development rights without altering the overarching framework or criteria for granting development consents.

Furthermore, the court clarified that the prior approval conditions attached to permitted developments are integral to the planning permission itself and do not constitute a separate framework necessitating an SEA.

Impact

This judgment reaffirms the boundary between statutory instruments that set comprehensive frameworks requiring environmental assessments and those that merely adjust specific permissions or classifications within existing frameworks. It clarifies that not all legislative changes impacting development or planning fall under the SEA Directive, thereby providing certainty to governmental bodies when enacting permissible adjustments without triggering SEA obligations.

For environmental campaigners and planning authorities, the decision underscores the importance of discerning the scope and impact of legislative instruments to determine whether they necessitate an environmental assessment. It also emphasizes the judiciary's role in interpreting EU directives within the confines of their precise legislative language.

Complex Concepts Simplified

Strategic Environmental Assessment (SEA) Directive

The SEA Directive is a European Union directive aimed at ensuring that environmental considerations are integrated into the preparation and adoption of plans and programmes likely to have significant environmental impacts. It mandates that certain plans undergo an environmental assessment to evaluate potential effects on the environment.

Plans and Programmes

Under the SEA Directive, "plans and programmes" refer to any measures established by authorities that set out criteria and procedures for granting development consents. This includes new frameworks for development or substantial modifications to existing ones that significantly affect environmental outcomes.

Permitted Development Rights

Permitted development rights allow certain types of development to proceed without the need for a full planning application. These rights are granted through statutory instruments like the GPDO, specifying what can be developed under this automatic permission, often subject to conditions or exclusions.

Development Consent

"Development consent" encompasses the authorization given by a competent authority to proceed with a development project. It includes both the grant of planning permission and any subsequent approvals required before construction begins.

Conclusion

The Court of Appeal's decision in Rights: Community: Action v Secretary of State delineates clear boundaries regarding the applicability of the SEA Directive to statutory instruments modifying planning legislation. By affirming that the amended GPDO and Use Classes Order do not constitute "plans or programmes" that set a framework for future development consents, the court upheld the legality of these instruments being enacted without an environmental assessment.

This judgment underscores the necessity for statutory measures to establish comprehensive criteria and procedures for future development consents to fall within the SEA Directive's scope. It provides a critical reference point for future cases where the scope of environmental assessments in legislative changes may be contested.

Ultimately, the decision balances the need for environmental oversight with the government's ability to streamline and adjust planning regulations, ensuring that only significant frameworks influencing development require thorough environmental scrutiny.