ECJ ruling on Strategic Environmental Assessments

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The Eurpoean Court of Justice (ECJ) has recently decided that the repeal of certain plans must be subject to an SEA, even where the adoption of the plan was not compulsory under legislation or regulations.

The ECJ has made a significant ruling concerning which plans and programmes must be subject to Strategic Environmental Assessments (SEAs) under the SEA Directive (2001/42/EC). In Inter-Environment Bruxelles ASBL v Region de Bruxelles-Capitale (2012), the ECJ took a purposive approach in deciding that the repeal of a plan (rather than just its adoption or modification) could fall within the scope of the directive since its repeal could alter the development in the area, and thereby have significant effects on the environment. The type of plans considered were “specific land use plans” for development of land in the Brussels-Capital Region.

The ECJ also decided that where the adoption of plans and programmes is regulated by legislature, those plans must be regarded as within the scope of the directive even if their adoption is not compulsory.

The decision is significant for town and country planning within England and Wales. The revocation of RSS is now further delayed while the Government undertakes an SEA for each region. Local authorities will have to bear the ruling in mind when seeking to revoke or update plans, or adopt any non-compulsory plans such as supplementary planning documents.

The ruling has already been successfully relied upon in a case concerning redevelopment at Shepherds Bush Market, where the High Court accepted that the SPD adopted by London Borough of Hammersmith and Fulham was unlawful since it had not been subject to an SEA.

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