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Court of Appeal rejects first local plan challenge

Words: Laura Edgar
Deben Estuary

The Court of Appeal has upheld Suffolk Coastal District Council’s (SCDC) adopted core strategy in the first local plan challenge it has tried.

Geoff Holdcroft, the council’s cabinet member with responsibility for planning, said: “We were always confident about the rigorous process we followed in drawing up the local plan would be found to be sound. Its development took nearly a decade, during which time it was open to public scrutiny and comment, before being given the final seal of approval by the independent Planning Inspectorate.”

A High Court Judge dismissed legal action by No Adastral New Town (NANT) against the council’s core strategy in February 2014. The campaign group had opposed it on grounds relating to Strategic Environment Assessment (SEA) and ‘Appropriate Assessment’ (AA) under the Habitats Directive/Regulations.

NANT, set up to protect the area and the community against the proposal in the core strategy near Adastral Park, had been allowed to appeal against the decision.

Development of SCDC’s core strategy began in 2006, but was not formally adopted until July 2013. The main site of controversy was a proposal for 2,000 houses on greenfield land next to Adastral Park, near Martlesham. The site is also near the Deben Estuary, which is a Special Protection Area, protected under Habitats Directive.

In 2008, the site was identified as the preferred location for 1,050 houses, but at this point no SEA or AA had been carried out. Acting for the council, Cornerstone Barristers explained that the 2008 consultation, however, “was accompanied by a full SEA and an AA screening reports identifying the potential effects on the Deben Estuary SPA”.

In 2009, the proposal was increased to 2,000 homes, but consultation to assess other locations was not held until just before the plan was submitted for examination in 2011.

“The AA concluded that there would be no adverse impact on the SPA, provided specified mitigation was put in place,” said Cornerstone, something the council then added to the plan.

The legal challenge argued that the lack of SEA before 2008, the failure to consider alternatives for the 2,000 houses in 2009, and the late addition of mitigation measures meant the process had been unlawful.

The council accepted that there had been errors in the SEA process but, it said, these had been cured before the core strategy was adopted, and the Court of Appeal agreed.

Cornerstone said: “This judgment will be welcomed by local authorities who are engaged in preparing development plan documents. The fact that the Court of Appeal has endorsed the principle of curing errors in the environmental assessment process is particularly significant, and echoes the approach taken by the courts to Environmental Impact Assessment challenges.”

The legal firm added that opportunities to carry out further SEA and AA work, as well as further consultations, should not be missed.

Richard Buxton, NANT’s solicitor, said: “The case raises serious issues about due process in both domestic and EU environmental law. I find it hard to see how what Suffolk Coastal District Council did – or did not do here – can stand.

“It is particularly surprising that the court did not adopt a purposeful approach to interpretation of the rules relating to areas like the Deben, that should be examined at the earliest possible stage, not when the preferred housing area has already been chosen.”