When is a SEA required?

16th August 2011


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Colleen Theron and Deirdre Lyons examine a Court of Appeal decision on applying Strategic Environmental Assessment

The Court of Appeal (CA) has dismissed a challenge brought by Central Craigavon, owners of the Sprucefield Shopping Centre in Northern Ireland, against a planning application for development.

The main ground of appeal was whether a draft planning policy statement (PPS) constitutes a “plan or programme” under the terms of the EU Directive on the assessment of the effects of certain plans and programmes on the environment (2001/42/EC) – so, whether it was subject to a Strategic Environmental Assessment (SEA). The validity of the PPS was also challenged unsuccessfully.

Crucially, from an environmental viewpoint, the appeal by Central Craigavon focused on the SEA issue, arguing that in formulating the draft Planning Policy Statement 5: Retailing, town centres and commercial leisure developments (PPS5), the Department of Environment (DoE) in Northern Ireland had not complied with mandatory SEA requirements under EU or domestic law.

SEAs seek to confirm that a PPS has been systematically assessed and revised during its preparation. They also ensure that the policy contributes to international sustainable development objectives.

Directive 2001/42/EC notes in recital 4 that: “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 and 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.”

The CA held that draft PPS5 could not be considered a “plan or programme” within the meaning of the Directive, which would require environmental assessment by virtue of article 3. It stated that draft PPS5 currently has no legal status until executive committee approval is obtained. The appellant’s argument failed on this ground.

Nevertheless, the case highlights an important issue. Even before a draft PPS is finalised and adopted, it becomes a material consideration for developers in subsequent planning applications as an evolving policy, although the weight to be attached to it will be a matter for the relevant decision-maker.

Consequently, unlike many draft documents, developers must be aware that a draft PPS is not a document devoid of legal significance and a decision to adopt a draft PPS carries legal effects.

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