In what is described by one planning lawyer as an "extraordinary" move, Friends of the Earth (FoE) last week declared that it is seeking to challenge the government over its failure to carry out a strategic environmental assessment (SEA) for its updated National Planning Policy Framework (NPPF), published in July. Through the High Court, the environmental campaign body is seeking to force the government to carry out an SEA, consult the public again and then modify the framework based on the findings.
The case appears highly significant, not least because it constitutes the first time the NPPF as a whole has been challenged in court, as opposed to challenges regarding how various sections of the document should be interpreted. FoE’s motivation for bringing the challenge is the inclusion of more positive backing for oil and gas extraction in paragraph 209(a) of the updated NPPF, along with the absence of stronger backing for wind power projects and a ban on coal extraction. In a statement last week, it said the failure to carry out an SEA "leaves the public in the dark" over the environmental impacts of the new rules and whether less damaging alternatives were considered. "I do think the challenge is extraordinary," said Stuart Andrews, a partner and head of the national planning team at Eversheds Sutherland. "You don’t get challenges like that at this level."
The legal question at the heart of the challenge is also an interesting one. The fact the government didn’t carry out an SEA for the second iteration of the NPPF is not disputed. Instead, the case will consider whether, from a legal perspective, it should have done. The requirement for plan-making authorities to carry out SEAs has its origins in the European Union’s 2001 SEA Directive, which was transposed into UK law in 2004. As the law stands, there are numerous questions surrounding interpretation of the directive, not least whether an SEA is required for high-level documents like the NPPF.
"On one view, obviously something like the NPPF should be subject to SEA because it’s the overarching framework for development in this country and if the government is going to have a framework, it needs to consider the environmental implications of that framework," said Ned Westaway, a barrister at Francis Taylor Building. "But I think there’s an interesting possible response that the NPPF is a high-level general statement of policy that isn’t required by legislation and couldn’t sensibly be subject to SEA."
Legal experts pointed out that the original NPPF was not subject to SEA, despite being drawn up after the directive was brought into UK law. "The government didn’t go through this process when it wrote the original framework and nobody seemed to be very bothered," said Katherine Evans, a partner and head of planning at TLT Solicitors. "There are arguments either way as to whether it should have done an SEA."
It is not yet certain that FoE will get their day in court. The High Court still needs to decide whether to give the challenge permission to proceed. Westaway said this is far from certain. "Are the courts going to entertain this challenge, given that the revised NPPF was consulted on and views on it were taken into account?" he asked. "All right, the consultation exercise wasn’t an SEA, but the courts might say it was good enough. I think that’s the most difficult point for FoE."
Assuming the High Court allows the challenge to be heard and FoE go on to win, the consequences would be multiple. According to Evans, planners might have to fall back on the 2012 document but with the July version still deemed a material consideration. If the government accepted such a ruling, it would have to go back and conduct an SEA, which Westaway suggests would be "enormously challenging".
However, experts judge it highly unlikely that ministers would take a defeat lying down. "This is the government’s overarching statement of national policy," said Westaway. "If it loses, it would want to challenge the ruling. This could be a case that goes all the way to the Supreme Court."
Note: the introduction to this article was altered at 10am on Wednesday 19 September to make it clear that Friends of the Earth's stated aim is to have the revised NPPF declared unlawful without an SEA, rather than to have the document "struck down".