Communities and Local Government

• Planning, building and the environment
• Planning
• Sustainability and Environmental Assessment
• SA
• SEA Directive

Planning, building and the environment

The SEA Directive: Advice for Planning Authorities on Retrospective Application

1. Introduction

1.1 The 'SEA Directive' (see footnote ¹ at the end of this page), transposed by the Environmental Assessment of Plans and Programmes Regulations 2004 (see footnote ² at the end of this page) (hereafter referred to as the 'SEA Regulations'), applies mainly to plans and programmes whose formal preparation began on or after 21 July 2004. However, Article 13.3 of the Directive (regulation 6.2) also requires environmental assessment of plans and programmes whose formal preparation began before 21 July 2004 and which have not been adopted by 21 July 2006, unless it is decided that this is 'not feasible'. Decisions on whether an environmental assessment is feasible must be made on a case-by-case basis, and the public must be informed of decisions.

1.2 It is for the Responsible Authority (hereafter referred to as the 'authority') which prepares a plan and programme to form a view on whether it is feasible to carry out environmental assessment. Decisions are however open to both domestic judicial review and infraction proceedings brought by the European Commission. Ultimately, what is 'feasible' will be decided by the courts.

1.3 This note sets out issues which Communities and Local Government advises authorities to take into account in deciding how to comply with Article 13.3. It refers to European Commission guidance on the Directive (see paragraph 4.5 below). It must however be emphasised that this note is intended as guidance only and cannot be used to predict with any certainty the view a court would reach in any particular case. Authorities should obtain their own legal advice. 

1.4 As in the Communities and Local Government consultation paper on Sustainability Appraisal of Regional Spatial Strategies and Local Development Frameworks of September 2004, this note uses 'SEA' to refer to an environmental assessment under the Directive. 'Plan' is used in this note to denote development plans under the Town and Country Planning Act 1990, as amended.

2. Application to Local Development Documents

2.1 This note is very unlikely to be relevant to local development documents (LDDs) under the Planning and Compulsory Purchase Act 2004 since the issue of retrospective application should not apply. A local planning authority is allowed, under regulation 6 of the Transitional Arrangements Regulations (see footnote ³  at the end of this page) to the 2004 Act, to treat any step taken prior to commencement of that Act in September 2004 for the purposes of preparing a LDD as having been taken after that date. As Planning Policy Statement 12: Local Spatial Planning (PPS12) makes clear, this should include sustainability appraisal which incorporates the requirements for an environmental assessment under the SEA Directive. The need to undertake a sustainability appraisal as an integral part of preparing a LDD has been clear since the Bill was introduced in 2003. Since it is most unlikely that any preparatory work on a LDD would have been undertaken before then, there should not be any cases of failure to carry out a sustainability appraisal even for those LDDs where work has started prior to July 2004. Similar principles apply to work on preparing revisions to regional spatial strategies (RSSs).

3. Summary

(i) The test of whether it is 'not feasible' to carry out SEA is likely to be interpreted very strictly by the courts (see paragraph 4.1 below). An argument that environmental assessment is inconvenient or unhelpful is very unlikely to be sufficient to satisfy this test. In determining feasibility, among the considerations which a court is likely to take into account include the following:

• the duty on Member States (which will include authorities) not to undermine the objectives of the Directive (see paragraph 4.2 below). This will include avoiding taking actions which would have that effect during the period prescribed for transposition (the period that runs from the coming into force of the Directive on 21 July 2001 until its transposition on 21 July 2004). (see paragraph 4.3 below) and
• the fact that guidance was available before the transposition date of 21 July 2004 (see paragraphs 5.2 and 5.3 below)

(ii) Where an authority had not been undertaking an SEA prior to 21 July 2004 , then it will need to consider whether as at that date it was feasible to do so. For the reasons summarised in (i) above, it is likely that only in exceptional cases will the test of 'non-feasibility' be met. In order to minimise the risk of legal challenge or infraction proceedings being brought by the European Commission, Communities and Local Government considers that it would be advisable to carry out SEA in all except the following cases:

• the plan concerns minor alterations to an existing plan or is concerned with a small area and is unlikely to have any significant environmental effects (see paragraph 7.2 below) or
• the plan had reached such an advanced state at 21 July 2004 that there were compelling reasons why SEA should not be carried out at that stage, and it would be unreasonable to do so. The criteria to be taken into account when reaching this decision could include the nature and number of statutory steps still to be taken before adoption would normally take place, the expense and disruption of having to go back to the beginning of the plan preparation process and the extent to which SEA at this stage was unlikely to add value. These criteria must all be weighed against the environmental protection objectives of the Directive. In Communities and Local Government's view an authority's argument that it is not feasible to carry out SEA is likely to carry considerable weight if, as at 21 July 2004, an inquiry or examination in public had already commenced or was about to commence (see paragraph 7.3 below).

4. The meaning of 'not feasible' and possible court interpretation

4.1 When interpreting 'not feasible', it is essential to bear in mind that Article 13.3 is a derogation from the obligations of the Directive. In general, courts interpret derogations from Directives narrowly. A court may therefore be expected to interpret 'not feasible' very strictly.

4.2 The meaning of 'feasibility' in this context must be considered in light of the objectives of the Directive, which are set out in Article 1:

"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..."

4.3 When feasibility is considered, authorities should therefore consider whether the plan or programme is at a stage where SEA would help to achieve these objectives. A court might take an unfavourable view if an authority appeared to be using Article 13.3 to avoid or negate the objectives of protecting the environment or integrating environmental considerations into plan-making. European Court of Justice (ECJ) rulings on the Environmental Impact Assessment (EIA) Directive 4 emphasise that the method adopted to determine whether EIA should be carried out should not undermine the objective of the Directive (see footnote ⁴ at the end of this page), and it is likely that the ECJ will take a similar approach to SEA if the plan is likely to have significant effects on the environment. This will include action taken during the period prescribed for transposition (from the coming into force of the Directive on 21 July 2001 until its transposition on 21 July 2004). This means that authorities at the very least should not have evaded their duties by, for example, manipulating deadlines and intentionally attempting to rely upon the exception provided by Article 13.3 of the Directive.

4.4 The primary Oxford English Dictionary definition of "feasible" is "practicable, possible". This suggests that authorities would need to demonstrate that there is a real impediment to their carrying out SEA of a plan, rather than merely asserting that doing so would be inappropriate or unhelpful.

4.5 Finally, the European Commission's guidance on the Directive (see footnote ⁵  at the end of this page) provides a useful commentary which a court, though not bound by it, would be likely to take into account.

"The environmental assessment of plans and programmes should influence the way the plans and programmes themselves are drawn up. While a plan or programme is relatively fluid, it may be easier to discard elements which are likely to have undesirable environmental effects than it would be when the plan or programme has been completed. At that stage, an environmental assessment may be informative but is likely to be less influential." (paragraph 4.2)

"It would not be feasible to carry out an environmental assessment of a plan whose first preparatory act was before July 2004 and which was at a very advanced stage at that date. The focus of this provision is not so much on how long before July 2004 was the starting date of the plan or programme, but on whether the planning process of relevant plans or programmes is at a stage at which a meaningful environmental assessment can be carried out." (paragraph 3.66)

4.6 The reference to "meaningful" SEA suggests that an authority should consider against the background of the environmental protection objectives of the Directive and, in the light of the stage reached, whether an SEA would add value to the plan, ie by identifying significant environmental effects that would result in the plan needing to be amended.

5. When should feasibility be assessed?

5.1 The feasibility of SEA should have been considered in relation to the stage of preparation which the plan had reached on 21 July 2004, the transposition date. However, authorities were not entitled to ignore the obligations of the Directive during the transitional period between 21 July 2001 and 21 July 2004 (see paragraph 4.3 above).

5.2 In determining feasibility, it is likely that a court would have regard to the fact that authorities were aware, or were deemed to be aware, of the requirements of the Directive, from when it came into force on 21 July 2001. The Directive was published in the Official Journal of the European Communities on that date and courts are likely to take the view that authorities should have been aware of it from then.

5.3 Communities and Local Government issued a consultation draft of guidance for English planning authorities on how to meet the Directive's requirements in October 2002 (see footnote ⁶ at the end of this page) and published final guidance in October 2003 (see footnote ⁷ at the end of this page). One of the main reasons for producing this guidance well ahead of 21 July 2004 was to help authorities to move towards compliance where plans were unlikely to be adopted by July 2006. Both documents were sent to every planning authority and regional planning body in England.

6. Documentation of decisions that SEA is not feasible

6.1 Where an authority decides that SEA is not feasible, it should ensure that its decision-making process is evidenced by documentation containing information that supports the decision. This documentation should be easy to follow without the need for research or reconstruction of an audit trail. If, in the event of legal challenge, a court was unable to check that the authority had considered the question of feasibility, it might draw the conclusion that this question had not been addressed adequately, and that therefore the derogation at Article 13.3 could not apply. A recent ECJ judgment on EIA (see footnote ⁸ at the end of this page) stressed the need for authorities to ensure decisions contain or are accompanied by all the information necessary to check that they are based on adequate screening. For this reason, an unsupported assertion is not likely to be sufficient for the purpose of the Directive, and authorities should not regard all plans that have reached a particular stage as automatically exempted from SEA.

7. What this means for particular types of development plan or stages in their preparation

7.1 Taking into account the above considerations and to minimise the risk of legal challenge, it would be prudent to carry out SEA on all plans begun before 21 July 2004 but unlikely to be adopted by 21 July 2006 unless the plan falls within one of the two categories set out below.

7.2 The first is that an SEA is not needed where a plan would only determine the use of a small area at the local level or constitutes a minor modification to an existing plan and it is unlikely to have significant environmental effects. It is unlikely that many plans would fall into this category and if they did that they would take this long (over two years) to prepare. If an authority considers that a plan does fall into this category then under regulations 4 and 9 of the SEA Regulations the authority should consult the Countryside Agency, the Historic Buildings and Monuments Commission for England, English Nature and the Environment Agency on whether they agree that there would not be any significant environmental effects. If the authority then determines that the plan is unlikely to have any significant environmental effects, in order to comply with regulation 11 of the SEA Regulations, it would need to publish that determination with a statement of reasons within 28 days of making the determination.

7.3 The second is that the plan was at such an advanced stage of preparation on 21 July 2004 that there are compelling reasons why an SEA should not be carried out and it would be unreasonable to do so. In deciding whether this is the case, an authority should consider matters such as the nature and number of statutory steps still to be taken before adoption would normally take place and the expense and disruption of having to go back to the beginning of the plan preparation process. In Communities and Local Government's view an authority's argument that a plan was at such an advanced stage that it was not feasible to carry out SEA where the plan was already undergoing an inquiry or examination-in-public as at 21 July 2004, or was about to do so, is likely to carry considerable weight. In these cases there will be the expense and inconvenience caused to participants of a delay in the inquiry or examination-in-public or of asking them to participate again and account should be taken of the expectations of participants that the plan will proceed to adoption. However, the earlier the stage of the plan-preparation process reached at 21 July 2004, the less likely it is that an argument that it is not feasible to subject a plan to SEA will be convincing. For example, such an argument is likely to carry much less weight where a local plan or UDP had only just reached first or even revised deposit stage, or, in the case of a structure plan had only reached deposit stage, at 21 July 2004.

7.4 In determining whether the plan was at such an advanced stage of preparation on 21 July 2004 that it would be unreasonable to carry out an SEA another factor to be taken is whether a SEA would be likely to add value at that stage. Communities and Local Government considers it advisable for authorities to produce evidence from some form of environmental assessment, albeit not a SEA, that the likelihood of identifying significant environmental effects that would require any fundamental revision to the plan (including mitigation action) was minimal. It is long-established good practice, supported by guidance from Communities and Local Government and its predecessors, to carry out environmental appraisal or (more recently) wider sustainability appraisal of plans. While such appraisals cannot be expected to satisfy all of the Directive's requirements they may help authorities demonstrate that the plan is unlikely to have significant environmental effects.

8. What happens where a retrospective SEA has to be carried out

8.1 Where a retrospective SEA has to be carried out the authority will need to subject earlier stages of plan preparation to SEA, drawing upon any environmental appraisal or wider sustainability appraisal work that has been carried out. Where there are prohibitive cost or other practical considerations that prevent subjecting all previous stages of plan preparation to SEA then the authority should discuss this with the Government Office. Given this is a retrospective process it may be necessary to roll several of the earlier stages into one and consult on that. For example, the authority may wish to consult on an environmental report which appraises both the alternative and preferred options. However, any assessment that does not fully comply with the Directive runs the risk of legal challenge. Therefore, the authority should ensure that it complies with the Directive and in particular that it:

• prepares an environmental report on implementing the plan and reasonable alternatives in accordance with Article 5 and Annex 1 to the Directive
• consults the designated environmental bodies and the public on the environmental report in accordance with article 6 of the Directive and
• on adoption of the plan, publishes the information required by Article 9 of the Directive

¹ Directive on the assessment of the effects of certain plans and programmes on the environment 2001/42/EC

²  Environmental Assessment of Plans and Programmes Regulations 2004 (Statutory Instrument 2004 No 1633) (external link)

³ Town and Country Planning (Transitional Arrangements) (England) Regulations 2004 (Statutory Instrument 2004 No 2005) (external link)

⁴ Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. As amended by Directive 97/11/EC

⁵ Implementation of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, 2003

⁶ Strategic Environmental Assessment, Guidance for Planning Authorities: Practical Guidance on applying European Directive 2001/42/EC 'on the assessment of the effects of certain plans and programmes on the environment' to land use and spatial plans in England, Consultation Draft, October 2002

⁷ Strategic Environmental Assessment, Guidance for Planning Authorities: Practical Guidance on applying European Directive 2001/42/EC 'on the assessment of the effects of certain plans and programmes on the environment' to land use and spatial plans in England, October 2003

⁸ C-87/02 Commission v Italy