Legal Viewpoint - Division needed to assess own plans

On 20 October, the Department for Communities and Local Government (DCLG) published eight strategic environmental assessment (SEA) reports on the proposed revocation of the English regional strategies. On the same day, the European Court of Justice handed down a ruling that, had it gone the other way, might have rendered those reports unlawful.

The 2007 Northern Ireland High Court ruling in Seaport Investments Ltd v Department of the Environment for Northern Ireland showed that failure to comply with the European Union SEA directive has significant consequences. The case concerned the lawfulness of SEA reports prepared by the department for its draft Northern Area and Magherafelt local plans.

Mr Justice Weatherup held that the EU directive had been incorrectly transposed into Northern Ireland law. He ruled that there should have been a separation between the department, as the authority responsible for preparing the plans, and the departmental agency that acted as a consultative body to assess their environmental effects. Fixed consultation timescales should have been set out in domestic legislation, he decided. He also found that the SEA reports were deficient in various respects and had not been developed in parallel with the emerging plans, as the directive requires.

The department appealed. The Northern Ireland Court of Appeal referred the question of whether the directive had been correctly transposed into national law to the European Court. Last month's ruling was in the department's favour.

First, it ruled that one authority can have responsibility for creating an SEA and, through an internal agency, be the relevant consultee so long as any "administrative entity internal to it has real autonomy, meaning it is provided with administrative and human resources of its own". Such an agency must be able to fulfil its tasks and "give an objective opinion".

Second, the court held that consultation deadlines do not need to be set out in domestic legislation: periods may be "laid down on a case-by-case basis by the authority which prepares the plan or programme". However, it made clear that the period laid down must be sufficient to give consultees "an effective opportunity to express their opinions in good time on that plan or programme and on the environmental report upon it".

Without this ruling, the DCLG's dual roles in the SEA of regional strategy revocation would surely have been questionable. No doubt some will scrutinise its SEA reports to determine whether they are legally deficient in ways equivalent to those considered by Weatherup. As the ruling shows, strategic environmental assessment is a minefield - it is no wonder that the government is asserting that its high-speed rail programme is not a "plan or programme" for SEA purposes.

Department of the Environment for Northern Ireland v Seaport (NI) Ltd and Others; Ref: C-474/10; Date: 20 October 2011.

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